2019Do9773 Violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Embezzlement)

Defendant 1 and one other

Defendants

Law Firm (For the Defendants)

Attorney Lee Ho-hoon et al.

Seoul High Court Decision 2019561 Decided June 27, 2019

December 24, 2019

All appeals are dismissed.

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. The crime of embezzlement is a property crime against another person’s property, the legal interest of which is protecting the principal right, such as ownership of property (see, e.g., Supreme Court Decision 2013Do658, Aug. 30, 2016). Therefore, insofar as the subject of embezzlement falls under another’s property, it does not affect the establishment of the crime of embezzlement.

A stock company is an independent right holder separate from shareholders, and thus its understanding does not necessarily coincide. Thus, if a shareholder, representative director, or a person who manages de facto affairs related to the custody or operation of the company's funds disposes of the company's assets for private purposes without permission, then embezzlement is established (see, e.g., Supreme Court Decisions 9Do1040, Jul. 9, 199; 2010Do17396, Mar. 24, 201).

Of the facts charged against Defendant 1, the lower court maintained the judgment of the first instance court that convicted Defendant 2 of violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Embezzlement) and the facts charged against Defendant 2. Examining the reasoning of the lower judgment in light of the aforementioned legal doctrine and evidence duly admitted, the lower court did not err by failing to exhaust all necessary deliberations, exceeding the bounds of the principle of free evaluation of evidence inconsistent with logical and empirical rules, or by misapprehending the legal doctrine on

The Defendants asserted to the effect that the lower court erred by misapprehending the legal doctrine on the premise that the lower court applied the legal doctrine of denial of legal personality. However, such assertion is not a legitimate ground for appeal as it is asserted by the Defendants only when the Defendants asserted in the final appeal that they were the grounds for appeal or that they were not subject to judgment ex officio. Furthermore, according to the reasoning of the lower judgment, it is difficult to deem the lower court to have specified the victims of embezzlement by applying the legal doctrine of denial of legal personality. In exceptional cases where it is possible to deem that the Defendants abused legal personality, the lower court disregards the legal personality of the company and takes responsibility subsequent to the abuse of legal personality. The Defendants do not depend on the establishment of embezzlement depending on whether the Defendants embezzled the price of supplied goods of the victimized company by using

2. The Defendants’ assertion that the lower court erred by misapprehending the legal doctrine on the subject matter and reliability of confession, the intent of embezzlement and the intent of unlawful acquisition is not a legitimate ground for appeal, as it asserted in the grounds for appeal or that the lower court did not have ex officio been subject to adjudication. In light of the evidence duly admitted, the lower court did not err by misapprehending the legal doctrine on the subject matter and reliability of confession, the intent of embezzlement and the intent of unlawful acquisition, or by exceeding the bounds of the principle of free evaluation of evidence, contrary to what is alleged in the grounds for appeal, by failing to exhaust all necessary deliberations, contrary to what is alleged in the grounds of appeal.

3. The Defendants’ appeals are without merit and all are dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Dong-won

Justices Cho Jong-hee

Justices Kim Jae-hyung

Justices Min Min-young