208No681 (a) Occupational embezzlement

(b) Abuse;

Jinsu Kim00 (51** - 2* *) and the head of a welfare facility

Residential shelter * *

original domicile** *

Both parties to a lawsuit

Stickers' stuffing machines

Attorney Lee Chang-soo et al.

Chuncheon District Court Decision 2008Ma245 Decided September 16, 2008

August 28, 2009

The judgment of the court below is reversed.

A defendant shall be punished by imprisonment for two years.

The seventy-two days of detention before the pronouncement of the judgment below shall be included in the above sentence.

However, the execution of the above punishment shall be suspended for three years from the date this judgment becomes final and conclusive.

To order the accused to provide community service for 200 hours.

1. Summary of grounds for appeal;

A. Prosecutor (1) misunderstanding of facts or misunderstanding of legal principles (as to the acquittal portion)

The basic living cost or the allowance for disabled persons received by the defendant constitutes money received from a third party (the State or a local government) for the disabled person, who is a delegating person, based on his/her conduct of business, and is specified for the purpose or purpose. Since support money, living cost, and deposit for admission are specified and entrusted for the welfare of the victims, so long as the defendant used it at his/her discretion, the crime of occupational embezzlement is established. However, the court below acquitted the defendant of this part of the facts charged, which is erroneous in the misapprehension of facts or in the misapprehension of legal principles, which affected the conclusion of the judgment.

(2) Unreasonable sentencing

The sentence of the court below against the defendant (two years of suspended sentence in August) is too unfluent and unfair.

B. Defendant (an unreasonable sentencing)

Considering the background leading up to the defendant's crime of abuse and the fact that the defendant was able to care for the disabled while operating 00 houses, the punishment sentenced by the court below is too unreasonable.

2. Judgment on the prosecutor's assertion of mistake or misapprehension of legal principle

1) Summary of the facts charged as to the occupational embezzlement of this case

On October 203, the Defendant received basic living expenses, disability allowances, and living expenses from the families of the disabled and used them for the disabled as bank accounts, and managed them, from 1.0 to 2.0 on December 2, 2005, the Defendant deposited KRW 7,092,00 and KRW 15,151,000 in total with 00,00 won and KRW 20,000 in the account of the disabled’s deposit account from 30,000 in the name of 10,000 won and KRW 15,00,000 in total with KRW 30,000 in the account of the disabled’s deposit account, * 10,000,000 won in the name of 20,000 won in the previous bank account, * 16,000,000 won in the name of the disabled’s deposit account ** 16,06,000,000 won in the name of the victim *** 16,06,06,06,00.

According to the court below's adopted and examined evidence, the defendant's act of using the disabled's life allowance or the disabled's personal care allowance to be paid to the defendant for the purpose of using the disabled's personal care allowance or 600,000 won for the purpose of using the disabled's personal care allowance (the defendant's personal care allowance or 00,000 won for the purpose of using the disabled's personal care allowance or 60,000 won for the purpose of using the disabled's personal care allowance to be paid to the defendant for the purpose of using the disabled's personal care allowance or 00,000 won for the purpose of using the disabled's personal care allowance or 0,000 won for the purpose of using the disabled's personal care allowance to be paid to the defendant for the purpose of using the disabled's personal care allowance or 00,000 won for the purpose of using the disabled's personal care allowance or 60,000 won for the purpose of using the disabled's personal care organization's personal care allowance. Thus, the defendant's's personal care allowance or .

3) Determination of the immediate deliberation

The term "the custody of property in embezzlement" means the actual or legal control over the property and its custody should be based on the consignment relationship. However, it does not necessarily require that it is established by a contract such as loan of use, lease, etc., and it is also established by the customary principle of office management and the good faith principle (Supreme Court Decision 87Do1778 delivered on October 13, 1987). The money entrusted with the purpose and purpose are reserved by the truster until it is used for the prescribed purpose, purpose and purpose, and until it is used, and is consumed by the trustee against the purpose and purpose of the entrustment. Thus, the trustee constitutes embezzlement (Supreme Court Decision 94Do2076 delivered on October 12, 195). The money received from a third party on behalf of the truster on account of the above act shall be deemed to have a relationship between the truster and the delegated owner, and the delegated owner and the delegated owner, and the delegated owner and the delegated owner shall be deemed to have a relationship of 30Do140 delivered on April 20, 201.

Therefore, in light of the above legal principles, based on the facts acknowledged by the evidence duly adopted and investigated by the court below, ① Basic Living Security Act, which is a law that provides the basis for the payment of basic living expenses or allowance for disabled persons, and under the Act on Welfare of Persons with Disabilities, the defendant is in a position to receive the money to be received by the victims upon delegation from the victims. Therefore, the above money is used for the victims' livelihood, and the purpose or purpose is specified; ② Support money, living expenses and allowance for disabled persons, which are not primary recipients, are not the victims, but the victims' family members or the victims' family members are entrusted with the purpose of using the money for the welfare of the victims, ③ The defendant's use of the money for the purpose and purpose of supporting the disabled's welfare facilities or embezzlement of the disabled's personal living expenses, and the defendant's use of the money should not be deemed to belong to the defendant's personal compensation facilities or embezzlement of the disabled's personal living expenses.

3. Conclusion

Therefore, since the prosecutor's argument of mistake or misapprehension of legal principles is with merit, the judgment of the court below is reversed under Article 364 (2) and (6) of the Criminal Procedure Act without further review of each of the allegations of unfair sentencing by the prosecutor and the defendant, and the following decision is again rendered through pleading

Criminal facts

Since June 7, 2001, the Defendant operated a house of 771 - - 00 of 00 of 'living facilities for disabled persons', which is a social welfare facility in the original city, from around the original city, from around 7, 2001, and completed the report, and accepted and managed the mentally disabled persons at the original city. Around December 30, 2005, the Defendant was operating the above facilities by constructing a 2-story building on a 970 square meters away from the Seocho-si, Seoul Special Metropolitan City on December 30, 2005, and completed the report on the "facilities for reporting on the operation of a person with disabilities (mental body)" around May 29, 2006.

The above 00 houses were established for the purpose of rehabilitation guidance by accepting the mentally disabled persons, and approximately 34 persons such as the disabled * are confined.

On October 2003, the defendant received basic living expenses, disability allowances and living expenses from the family members of the disabled and used and managed them for the disabled as bank accounts.

1. Occupational embezzlement;

After the Defendant’s relocation of welfare facilities, approximately KRW 15,151,00,00 in total, including the daily living expenses of KRW 7,09,00,00, support payments of KRW 3,730,00 paid to the disabled families at the above 00 house from around December 2005 to around October 2007, including the daily living expenses of KRW 7,00,00, KRW 329,000, and KRW 3,730,00 in the name of the disabled families, the previous deposit account in the name of KRW 00,00.*** the agricultural branch in the name of the Defendant and KRW 62,05,00 in the name of the Defendant * the deposit account in the name of the Plaintiff * the deposit account in the name of the Defendant 13,00,000 in the name of the Defendant * the deposit account in the name of the agricultural cooperative * the deposit account in the name of the Defendant 20,000.

10.23.Withdrawal of 57,513,910 won, including interest, on the principal accumulated at maturity, including interest, and deposit of 14,513,910 won among them in the name of bank debt repayment on the same day.

In addition, from October 2003 to October 2007, the Defendant embezzled KRW 148,815,210 in total from the place of residence of the Defendant to the place of his private use, such as the contents indicated in the attached list of crimes, during the period from October 2003 to October 2007.

2. Abuse;

Victim New Victim* (Age 68) as a brain-dead patient, was admitted to the above 00 house around September 24, 2003, and victim assistance* (age 49) as a mentally handicapped person (class 2), around July 29, 2005, was admitted to the above 00 house and has been under protection of Defendant Kim**.

(a) the victim * the crime against the victim *

On September 2007, the defendant called the victim's new son who is located within a 00 church located in the Seocho-si, Won-si, 1103-2, 1103-2, the victim's second son who is expected to leave the U.S., * 00 Professor, the chief of the division of the division of the 00 son's son's son's son's son's son's Professor * * the victim's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son.

In addition, the defendant, when the victim gets a scam and scam, put a tree atmosphere in the victim's entrance, forced him to wear, and put an scambling drug into the victim.

Accordingly, the Defendant abused the victim * * who was protected by the Defendant.

(b) the victim assistance* The crime against the victim

The defendant around October 2007, at the above 00 house of the defendant around 00, the victim's assistance was placed in the victim's house for 3 and 4 days without the defendant's permission. On the ground that the defendant was placed in the victim's house for 3 and 4 days, the victim was placed on the floor and the two snow was divided into the two fingers.

Accordingly, the defendant abused the victim victim * * The defendant abused.

Summary of Evidence

[Judgment No. 1]

1. The defendant's partial statement in court below

1. Each protocol concerning the examination of the accused by the prosecution;

1. Currents**, this**, this part**, this part*, this part*, this part*, this part*, this part*, new part*, Kim*, this part*, this part**, Kim*, Kim**, Kim*, new part**, Kim*, best** each police statement.

1. An investigation report (O's report attached to the current status of persons with disabilities in the house of the Association), investigation report (00 of the recipients of the house of the Association and the payment details of individual benefits), investigation report (report on the confirmation of the recipient's personal information about the withdrawn amount), investigation report (report on the confirmation of the recipient's personal information about the account of the post office), investigation report (report on the confirmation of the details of the account in the name of the office Kim Jong-hwan), investigation report (report on the confirmation of the deposit amount of the house of 00), investigation report (report on the confirmation of the user's personal information about the living expenses of the house of 00), investigation report (report on the use of the deposit and the student's living expenses for the purpose of the entrance), report (report on the confirmation of the user's living expenses), investigation report (report of the user's personal information about the deposit amount and the payment details of personal benefits for each person), report on the use of the fund of the post office (report on the deposit of the disabled, report on the user's personal information and attachment of the investigation report);

[Judgment No. 2]

1. The defendant's partial statement in court below

1. Each protocol concerning the examination of the accused by the prosecution;

1. Pay*, this*, new*, each police statement about *

1. Investigative report (in 00's house life rights** in * in 10 interview report), investigation report (in * in 10 victims' new ones* in 20 statement report) 1. Original photograph;

Application of Statutes

1. Article relevant to the facts constituting an offense and the selection of punishment;

Articles 356 and 355(1) of the Criminal Act (the point of occupational embezzlement, the choice of imprisonment), Articles 273(1) and 30 (the point of abuse and the choice of imprisonment) of the Criminal Act

1. Aggravation for concurrent crimes;

Article 37 (Aggravation of Concurrent Crimes within the scope of Aggregate of Long-term Punishment of Crimes of Occupational Embezzlement, which is the most serious punishment, and Articles 38 (1) 2 and 50 of the Criminal Act.

1. Inclusion of days of detention in detention;

Article 57 of the Criminal Act

1. Suspension of execution;

Article 62(1) of the Criminal Act (The following extenuating Conditions in Sentencing)

1. Social service order;

Article 62-2 of the Criminal Act

Grounds for sentencing

Although the defendant is a person who operates a welfare facility for the disabled and has a duty to protect the disabled and transparent operation of the facility, the basic living expenses, etc. paid for the disabled victims have been used for personal purposes, and the embezzlement has considerable amount, the victim's new victims under the protection of the accused*, *, **, the victim's new victims under the protection of the accused. However, since March 3, 1998, the defendant has been working for the disabled in a place where it is difficult to operate the above welfare facility by constructing a "house of 00" around December 30, 2005, and served for the disabled in a place where it is difficult to operate the welfare facility, through transparent and accurate accounting management supervision or administrative guidance of the supervisory office for the individual welfare service provider, such crime as this case has been prevented, but such management system has yet been established or has been operated smoothly.

It is difficult to see that part of the embezzlement of this case is used for the construction cost, etc. of welfare facilities that the victims live. The guardians of the victims who have paid admission deposit and living expenses to the defendants do not raise any objection to the defendant's crime; the defendant was not paid monthly pay from April 2008 to December 12, 2008; the defendant submitted a letter of explanation that he would not receive it in the future; 32 million won was deposited into the account in the name of "house of 00" for the recovery of damage; the defendant was the primary offender; the defendant was the primary offender; the defendant's age, character and conduct of the defendant; the circumstances of the crime of this case; and the circumstances of the crime of this case after the crime.

Judge Jeong-chul of the presiding judge

Judges Jeon Sang-hoon

Judges Lee Jae-in

A person shall be appointed.