(영문) 서울고등법원 2007. 11. 1. 선고 2006노407 판결

However, for the defendant 1 and 3, the execution of each of the above punishment shall be suspended for three years from the date this judgment becomes final and conclusive.

In collusion with the defendants on April 19, 2005, the defendants embezzled 200 million won for the name of the deposit for lease (title omitted) university and the prosecutor's appeal on the non-guilty portion related to the violation of the Private School Act is dismissed.

Reasons

1. Summary of grounds for appeal;

A. Defendants

(1) misunderstanding of facts or misapprehension of legal principles

(A) As to the Defendants’ embezzlement of security deposits and rents

① Although the lower court determined the instant lease agreement as a false contract, deeming the instant lease agreement itself to be false is inconsistent with objective facts. The Defendants merely disbursed school expenses, etc. for the benefit of school students and did not intend to illegally obtain access to school expenses, etc., and the lower court determined that the crime of embezzlement is established when using school expenses accounting funds of school juristic persons for any purpose other than for the purpose of embezzlement. However, the lower court did not directly constitute embezzlement on the grounds that the accounts are distinct and the use is limited.

② Since the first lease agreement (number omitted) and the second lease agreement (number omitted) are different in nature, and the second lease agreement (number 103) are returned after the first lease, and the second lease deposit was deposited after the first lease, it was erroneous to determine that the entire lease deposit, etc. of this case constituted Article 3 (1) 1 of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes. Meanwhile, even if a crime is established with respect to the portion exceeding the reasonable rental price, it is difficult to calculate the excess amount, not the Act on the Aggravated Punishment, etc. of Specific Economic Crimes

(B) As to the embezzlement of Defendant 1 and 2’s provisional payment

The use of funds belonging to the school expenses accounts for other purposes does not constitute embezzlement immediately. It cannot be deemed that Defendant 1 used to send school expenses solely on the fact that Defendant 1 requested a loan of funds, and Defendant 1 did not know that school expenses are exclusively used. In fact, Defendant 1 included funds that are not included in the school expenses accounts among the borrowed money.

① In general, in cases of commercial buildings, etc., the lower court erred in determining that embezzlement is established with respect to the portion exceeding the actual usage area in the facility management services contract of this case, and ② Defendant 2 did not know that the service price of this case was calculated in excess of the actual usage area; ③ whether the use of the funds belonging to the school expenses accounts itself constitutes embezzlement or not, and the use of the funds in excess of the actual usage area, and thus, it is unclear that the lower court constitutes embezzlement.

(D) As to Defendant 1 and 2’s breach of trust in relation to the construction cost of a dormitory with convenience for the elderly, and violation of the Private School Act

In light of the fact that the dormitory of Ga B B B B has many inconveniences in various aspects, and it is not necessary to perform the construction of a dormitory for convenience in order to conceal the crime of embezzlement of this case, but the student actually used the dormitory after moving the dormitory to convenience, the cost of the facility cost does not constitute a breach of trust. In light of the purport of the provisions of the Private School Act, Defendant 1 cannot be punished as a co-principal of Defendant 2’s violation of the Private School Act.

(E) As to Defendant 1’s concealment of illegal profits

Of the lease deposit in this case, Defendant 1: (a) was commercialized part of the money between Nonindicted Party 2 from among the lease deposit in this case; (b) however, it was merely cashed by Nonindicted Party 2 in a bad credit position due to the tax in arrears, etc., taking into account the safety issues and convenience, etc.; and (c) was not cashed in the intent to conceal illegal profits by pretending illegal profits as a legal profit; and (d) it was commercialized not only in the lease deposit in this case, but also in the loan; (c) in this case, the funds were transparent accounting by both parties; (d) it was made without filing a tax return; and (e) the money transferred from the university is clearly based on the document transfer basis and without filing a tax return; and (e) it is necessary to convert the money into a small face value of the money transferred from the university to use it. In light of the fact that the realization of the funds in this case is not considered as falling under the concealment of illegal

(2) Unreasonable sentencing

In light of the following: (a) there was a basic agreement between the parties on the lease agreement; (b) there was a dormitory on the object of lease; (c) substantial portion of the embezzlement amount was returned; and (d) the remaining amount of KRW 2.8 billion was expected to be paid in full to the above university by providing the trust company with a certificate of beneficial interest of KRW 4 billion issued by the trust company to Nonindicted 1’s private teaching institute; (d) the securing of the dormitory in this case is recognized as a considerable amount of money to the (title omitted); (c) the disbursement of the school expenses in this case is not likely to actually affect the school’s financing operation; (d) Defendant 1 was in charge of the business in this case; and (e) there was no personal judgment or motive in this case; and (e) Defendant 3 was personally involved in the lease of the building entrusted by Nonindicted 2 (Co-Defendant 1) and name of Defendant 2 (name omitted; and (e) Defendant 2 contributed to the development of the university’s college.

(b) Prosecutors;

(1) misunderstanding of facts or misapprehension of legal principles

(A) As to the embezzlement of the security deposit for lease to the Defendants and the violation of the Private School Act, including embezzlement of KRW 265 million against the Defendants

Defendant 2, who was on September 1, 2003, was unilaterally sent a lease contract from September 3, 2003 with a deposit amount of KRW 265 million with respect to part of (number omitted), to Nonindicted Co. 3’s (title omitted), Defendant 2, who was appointed as an agent of the principal of the school on September 1, 2003, did not formally prepare a lease contract from September 3, 2003, but ordered Nonindicted Co. 3 to pay KRW 265 million with a deposit for the lease. Defendant 2, who was Defendant 3’s office before he was appointed as an agent of the principal of the school on behalf of the principal of the school, and Nonindicted Co. 4, who was aware of the fact that the above construction project was to be leased to the university (title omitted) and that Nonindicted Co. 3’s office was to be paid KRW 200,500,000 at the time of the above change of the principal of the school on September 4, 2003.

(B) As to embezzlement of KRW 200 million in the name of increase in the deposit for the lease of a dormitory on convenience for the Defendants and violation of the Private School Act

According to Non-Indicted 6’s prosecutorial statement, the increase of the lease deposit of this case is merely made in the process of establishing a security for the existing deposit between the Defendants and the (title omitted) university to be mitigated from criminal punishment for this case, rather than for reasonable grounds for increase. As long as there is no reasonable ground for increase of the deposit at the time of the increase of the lease deposit of this case, the content agreed between the parties is merely a name of embezzlement and a violation of the Private School Act.

(2) Unreasonable sentencing

In light of the background and nature of the instant crime, the relationship between damage recovery and damage recovery, etc., the lower court against the Defendants shall be mitigated.

2. Determination

A. Judgment on the misunderstanding of facts or misapprehension of legal principles by the Defendants

(1) As to the embezzlement of the Defendants’ deposit and the name of the rent

The Defendants asserted the same as the reasons for appeal at the court below. The court below rejected the above assertion on the ground that the Defendants conspired to make a false lease agreement with the 103 Easy Marasia (name omitted) university and the 103 Easymadong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong (name omitted), and embezzled funds belonging to the (name omitted) university's tuition under the lease deposit and rent, and the Defendants' embezzlement concluded a false lease agreement with the single intention to leak (name omitted), and then embezzled the (name omitted) university tuition expenses through a single intention to leak the college (name omitted), and thus, it constitutes a crime of occupational embezzlement. The judgment of the court below is justified, and it is not erroneous in the misapprehension of the facts affecting the conclusion of the judgment by misunderstanding the facts against the rules of evidence.

In light of the facts acknowledged in the judgment of the court below, even though the lease contract entered into between the university and the non-indicted 3 corporation with respect to (name omitted) and (name omitted) the 103 mobile convenience store (name omitted) is not a false contract, in light of the fact that the lease contract entered into between the university and the non-indicted 3 corporation is not a false contract, the lease of (name omitted) the 12 to 21 mobile convenience store between the university and the 103 mobile convenience store is deemed to have been made for the purpose of promoting the interests of the non-indicted 2, rather than promoting the interests of the university (name omitted) university (name omitted) that the lease of the 103 mobile convenience store for the macal convenience store is not for the purpose of promoting the interests of the university (name omitted) university and the 103 mobile convenience store (see Supreme Court Decision 9Do1141, Jun. 25, 199).

Therefore, the above assertion by the Defendants is without merit.

(2) As to the embezzlement of Defendant 1 and 2 under the pretext of provisional payments

The above defendants asserted the same purport as the reasons for appeal at the court below, and the court below rejected the above assertion on the ground that the above defendants conspired to embezzlement of funds belonging to school expenses in (title omitted) university under the name of provisional payment, on the basis of the reasons stated in 21 to 22 of the decision of the court below. If the above judgment of the court below is closely compared with the various evidences adopted through legitimate examination of evidence, the judgment of the court below is just and it is not erroneous in the misapprehension of facts against the rules of evidence, thereby affecting the conclusion of the judgment. Thus, the above argument is without merit.

(3) As to Defendant 1 and 2’s embezzlement of the title of the facility management service cost (including ex officio determination as to the embezzlement of the part not guilty in the grounds for this crime and the violation of the Private School Act)

(A) Summary of the facts charged

Despite the fact that the above Defendants could not transfer or lend the income belonging to the school expenses accounting to other accounts, Defendant 1 entered a false facility management service contract with the content that Nonindicted Co. 7 did management services, such as cleaning, by inserting five facility managers, etc. to the (title omitted) university dormitory located in the Roman price (name omitted) in order to raise funds necessary for the operation, etc. of Nonindicted Co. 3, etc. on December 1, 2003, Defendant 2 conspired to embezzled the school expenses of the (title omitted) university (title omitted) university under the above facility management service contract with Defendant 2 by making an disbursement of the expenses for the (name omitted omitted) university. From December 18, 2003 to July 21, 2004, Defendant 1 embezzled the total amount of KRW 193,200,000 for eight times in total.

(B) The judgment of the court below

① Defendant 1 unilaterally set the contract area and the contract amount of the above university and college (title omitted) and indicated the name of the above university and the name of the non-indicted corporation 7 at the end of 301, part of the (title omitted) facility management services contract with the non-indicted corporation (name omitted) and sent it to the university (title omitted). Defendant 2 approved the above contract on the inside of 300,000,000 on the aggregate of the size of the above 30,000,000,000 won and the size of the 20,000,000,000,000,0000 won for the above 20,000,000,000,0000 won for the above 3,00,000,000,000,000 won, and the size of the above 3,06,00,000 won, which is the most important for the purpose of the contract.

6) According to the court below’s ruling that Defendant 1 had been unilaterally engaged in the management of a dormitory (title 4) 7,000 and 460 square meters per 7,000, and that Nonindicted Incorporated Incorporated Incorporated Incorporated Incorporated Incorporated Incorporated Incorporated Incorporated Incorporated Incorporated Incorporated Incorporated Incorporated Incorporated Incorporated Incorporated Incorporated Incorporated Incorporated Incorporated Incorporated Incorporated Incorporated Incorporated Incorporated Incorporated Incorporated Incorporated Incorporated Incorporated Incorporated Incorporated Incorporated Incorporated. (6) No later than 7,7,000, the amount of the contract was 460 square meters per 7,000 and the amount of the contract was 460 square meters per 7,000, and no more than 7,0000,000 were 5,6,000,000 were 6,000,000,000 per 47,000,000,000,000,000 were 6,00,000,002).

As seen above, in light of the fact that the above defendants concluded a false facility management service contract with Nonindicted Co. 7 and there was no interest in the specific terms and conditions of the facility management service contract of this case at the university (title omitted) and there was no interest in the specific terms and conditions of the contract, the above defendants can fully recognize the fact that the above defendants embezzled the school expenses of the university (title omitted) under the name of the service price.

Even if the facility management services contract of this case is not false but genuine, in light of the above facts, it is reasonable to view that the above Defendants’ conclusion of the facility management services contract was conducted with the aim of promoting the interests of Nonindicted Co. 7 operated mainly by Nonindicted Co. 2 or Nonindicted Co. 2, rather than for promoting the interests of the university (title omitted) managing the above dormitories, and therefore, the above Defendants’ intent to obtain unlawful gains required in the crime of embezzlement is not exempt from the liability for the crime of embezzlement.

Furthermore, as seen earlier, insofar as the above Defendants concluded a false facility management service contract and embezzled funds belonging to the (title omitted) university’s school expenses accounts under the name of the service cost, the above Defendants’ act constitutes a violation of the Private School Act due to the said money disbursement.

Therefore, all of the above defendants' arguments are without merit. Rather, it is related to the fact that the above defendants embezzled the amount of unsound embezzlement in the name of facility management service cost and the violation of the Private School Act that the court below found not guilty on the grounds of the above defendants' grounds. (The charges that the above defendants embezzled the amount of KRW 193,200,000 on eight occasions as the facility management service cost constitutes one crime by combining the facts charged that the above defendants embezzled the amount of KRW 193,200,000 on eight occasions, but the court below judged that the part of each embezzlement, which constitutes eight times embezzlement, is not guilty, and found guilty on eight times or more, and if the court below found the defendant guilty only for the part of the charges that constitute a simple crime, the appeal shall be deemed to be a simple crime, and the part of the indictment shall be judged on the non-guilty part by the court below ex officio (see Supreme Court Decision 200Do5000, Feb. 9, 201).

(4) As to Defendant 1 and 2’s breach of trust in relation to the construction cost of a dormitory with convenience for the elderly, and violation of the Private School Act

The above Defendants asserted the same purport as the reasons for appeal at the court below, and the court below rejected the above assertion on the ground that the above Defendants committed a crime of breach of trust and violation of the Private School Act by performing the construction of unnecessary convenience dormitories in collusion with Nonindicted 2 and paying the construction cost of KRW 200 million to the construction business operator with the funds belonging to school expenses. When comparing the above judgment of the court below with the various evidences adopted by the court below through legitimate examination of evidence, the judgment of the court below is just and acceptable, and there is no error of law that affected the conclusion of the judgment by misunderstanding facts against the rules of evidence or misunderstanding the legal principles as to co-principal, and the above assertion is without merit.

(5) As to Defendant 1’s concealment of illegal profits

The above defendant asserted the same purport as the above reasons for appeal at the court below, and the court below rejected the above argument on the ground that the above defendant committed a crime in violation of the Act on Regulation and Punishment of Criminal Proceeds Concealment by concealing criminal proceeds acquired by embezzlement of funds belonging to school expenses accounts at (title omitted) university in collusion with non-indicted 2 for the purpose of pretending criminal proceeds as the property legitimately acquired. When comparing the above judgment of the court below with the various evidences adopted by the court below through legitimate examination of evidence, the judgment of the court below is just and acceptable, and it is not erroneous in the misapprehension of facts against the rules of evidence or by misapprehending the legal principles as to concealment of criminal proceeds, which affected the conclusion of the judgment. Thus, the above argument is without merit.

B. Judgment on the prosecutor's misconception of facts or misapprehension of legal principles

(1) As to the embezzlement of the security deposit for lease to the Defendants and the violation of the Private School Act, including embezzlement of KRW 265 million against the Defendants

(A) Summary of the facts charged

The Defendants, even though they could not transfer or lend income belonging to the accounts of school expenses to other accounts, in collusion with Nonindicted 2 to embezzled the school expenses of the (title omitted) university under the custody of Defendant 2 by using a false lease agreement to the effect that he leases the (name omitted) virtual family value, which is Nonindicted 2 owned by the university (name omitted). On September 4, 2003, the Defendants embezzled it by receiving KRW 265 million from the university under the name of lease deposit under the false lease agreement with the National Bank Substitute Branch of Nonindicted Co. 3, 2003, and embezzled it from November 25, 2003 to April 13, 2005, by taking advantage of the false lease agreement with the said account of Nonindicted 3, the sum of KRW 125,088,000, more than once under the name of rent under the false lease agreement.

(B) The judgment of the court below

(A) KRW 265 million paid on September 4, 2003

(5) In light of the evidence duly admitted by the court below, the court below found that the above 200 million won was insufficient (the name of the non-indicted 200 million won was omitted) for the purpose of 00 million won or more for the above 2000 million won (the name of the non-indicted 300 million won was omitted) to be used by the non-indicted 3 corporation (the name of the non-indicted 200 million won was omitted) at the time of the above 2000 million won or more for the purpose of 00 million won (the name of the non-indicted 200,000 won was omitted) and the rent deposit was not prepared by the non-indicted 3 corporation (the name of the non-indicted 3 corporation) at the time of the above 600,000 won or more for the purpose of 300,000,000 won for the purpose of 5,000 won or more for the purpose of 200,000 won.

(B) The rent portion

First, with respect to the portion of the rent of KRW 14 million paid nine times from November 25, 2003 to July 21, 2004, the lower court determined that the lease contract was concluded on September 3, 2003 with the lease deposit of KRW 265 million as seen in the above subparagraph (A) cannot be ruled out, and the possibility that the lease contract was concluded for the purpose of leasing the residential accommodation in Seoul at the university (title omitted) cannot be ruled out, and even if the lease contract was written on the part (number omitted) at the end of 380 square meters, the lower court determined that the above period of rent of KRW 30,000,000,000, which was paid by the prosecutor from September 3, 2003 to September 21, 2005, and the above period of rent of KRW 360,000,000,000,000 for the first time after September 6, 2003.

Furthermore, with respect to the portion of the rent of KRW 11,08,00 paid on March 24, 2005 and April 13, 2005, the lower court determined that: (a) despite the false rental agreement or Nonindicted 10’s prosecutorial statement, etc., the university (title omitted) used a convenience dormitory from March 2, 2005; and (b) in light of the payment date of KRW 11,088,00,00, the said money was paid during the period of using the convenience dormitory; (c) therefore, the said money cannot be deemed to have been paid as the fee (or rent) for the convenience club used as a dormitory; and (d) there is no evidence to deem that the said money was excessive; and (e) the above money was not sufficient to prove that the expenses for the establishment of the university were paid in compliance with the purpose of the use of the school expense in collusion with the intent of the university.

As seen in the above (A) and (B), the lower court determined that there was no proof of crime on the part of the facts charged, since it is difficult to view that the Defendants, as seen in the above (A) and (B), used the above lease deposit and rent regardless of the use of the university tuition.

원심이 적법한 증거조사를 거쳐 채택한 여러 증거들을 종합하여 보면, ① (명칭 생략)대학은 2003년 2월경 간호학과의 서울 실습생들을 위한 기숙사 임대보증금 명목으로 2억 5천만 원을 예산에 편성한 후 임차할 아파트를 찾던 중, 2003년 3월경 (명칭 생략)대학의 재단인 공소외 1 학원의 설립자인 공소외 2가 실질적으로 업무를 총괄하고 있던 공소외 3 주식회사로부터 은마상가를 50억 원에 임차하여 서울 실습생들을 위한 기숙사로 사용하라는 요구를 받은 사실(공판기록 244쪽, 276쪽~277쪽), ② 자신의 며느리 공소외 11을 공소외 1 학원의 이사장으로 두고 있던 공소외 2는 공소외 5와 공소외 9를 각각 (명칭 생략)대학의 기획실장과 사무처장으로 근무하도록 결정하고(공판기록 194쪽, 465쪽, 수사기록 4,196쪽) (명칭 생략)대학의 기획실장으로부터 매월 정기적으로 대학 업무를 보고받는(공판기록 제276쪽) 등 (명칭 생략)대학의 운영에도 상당한 영향력을 행사하고 있었으므로, 위와 같은 요구를 받고 이를 받아들일 수 없다고 판단한 (명칭 생략)대학의 학장이던 공소외 4와 기획실장이던 공소외 5가 2003년 4월경 공소외 2를 찾아갔는데, 공소외 2가 공소외 4를 만나 주지 않자 공소외 5만 공소외 2를 만나 공소외 2에게 위 임대차계약을 받아들일 수 없다면서 재고를 건의하였으나 공소외 2가 이를 받아들이지 않았고(공판기록 245쪽, 277쪽), 그 무렵 공소외 4는 공소외 3 주식회사의 대표이사인 피고인 3으로부터 (명칭 생략)대학에서 은마상가를 임대차보증금 50억 원에 임차하는 내용의 임대차계약서에 날인할 것을 요구받고 이것이 공소외 2의 뜻이라고 느꼈으나 이를 거부한 사실(공판기록 245쪽, 255쪽, 395쪽), ③ 그 후 공소외 4는 공소외 5로부터 공소외 2가 ‘다음 학장은 피고인 2이다, 공소외 4는 조기 퇴진시키는 방향으로 추진하라’는 취지의 지시를 하였다는 보고를 받고 학장 연임을 포기하였으며(공판기록 246쪽, 278쪽), 이에 (명칭 생략)대학은 2003. 7. 15. 공소외 1 학원의 이사인 피고인 3의 추천으로 피고인 2를 차기 학장으로 선임하였고, 피고인 2는 공소외 4가 2003. 10. 5. 임기만료로 퇴임하기도 전인 2003. 9. 1. 공소외 4가 학장직을 수행하지 못할 만한 특별한 사정이 없는 것으로 보임에도 (명칭 생략)대학의 학장직무대리로 취임한 사실, ④ 공소외 5는 검찰에서 ”2003년 8월 말경 공소외 3 주식회사에서 은마상가 B블럭에 관한 임대차계약서가 (명칭 생략)대학에 우편으로 송부되어 오자, 당시 학장직무대리로 예정되어 있던 피고인 2에게 ‘ 공소외 4 학장은 은마상가 임대차계약 때문에 스스로 사임을 하였는데, 학장님은 어떻게 생각하십니까’라고 물었는데, 그 때까지만 해도 은마상가 임대차 문제에 대하여는 피고인 2에게 처음 언급하였던 것임에도, 피고인 2가 은마상가 임대차에 관하여 물어 보지도 않은 채 ‘해야지 어떡하겠느냐’는 취지로 반문하여 피고인 2가 이미 은마상가 임대차문제에 대하여 알고 있는 것처럼 느꼈다“는 취지로 진술한 사실(수사기록 1,677쪽, 1,686~1,687쪽), ⑤ 당시 (명칭 생략)대학의 교비예산의 편성과 각 부처의 업무조정 등의 역할을 하던 기획실장 공소외 5는 은마상가를 학생 숙소로 임차할 생각이 전혀 없었을 뿐만 아니라(공판기록 278~279쪽) (명칭 생략)대학 실무진과 공소외 3 주식회사 사이에 은마상가 임대차계약에 관하여 아무런 협의가 없었음에도 공소외 3 주식회사은 2003년 8월 말경 (명칭 생략)대학이 임대차보증금 2억 6,500만 원에 은마상가 (지번 생략)호 일부(380평)를 임차한다는 내용의 임대차계약서를 (명칭 생략)대학에 일방적으로 송부했는데, 당시 공소외 7 주식회사에 근무하던 공소외 10이 피고인 3의 지시대로 위 임대차계약서를 작성해서 (명칭 생략)대학에 보낸 사실(공판기록 534쪽, 561쪽), ⑥ 피고인 2는 2003. 9. 1. 학장직무대리로 취임한 후 (명칭 생략)대학과 공소외 3 주식회사 사이에 아무런 임대차계약서가 작성되지 않았음에도 2003. 9. 4. 은마상가 기숙사 임대차보증금으로 2억 6,500만 원을 공소외 3 주식회사에 지급하도록 지시하여 (명칭 생략)대학에서 공소외 3 주식회사에 위 2억 6,500만 원을 지급한 사실, ⑦ 피고인 2는 학장직무대리로 취임하기 이전부터 공소외 3 주식회사에서 은마상가를 (명칭 생략)대학에 서울 실습생 기숙사로 임대하려고 한다는 것과 전임 학장인 공소외 4가 은마상가 임대차에 관하여 반대하였다는 것을 알고 있었던 것으로 보이는 사실, ⑧ 당시 (명칭 생략)대학의 기획실장이던 공소외 5는 위 임대차보증금 2억 6,500만 원을 지급하는 것이 부당하여 그 지출결의서에 결재를 할 수 없다고 생각한 끝에 공소외 2에게 몸이 아프다는 핑계를 대고 학장이던 공소외 4에게 수서과장으로 발령을 내 달라고 부탁하여 2003. 9. 1. 수서과장으로 발령받았다가 2003. 9. 4.경 공소외 2로부터 전화로 ”내일부터 기획실장으로 일하라“는 지시를 받고 2003. 9. 5.경부터 다시 기획실장으로 일하게 되었는데, 그 무렵 피고인 2로부터 날짜를 소급해서 발령을 낼 테니 2003. 9. 4.자 지출결의서에 결재를 하라는 지시를 받고 그 결재를 거절하다가 결국 결재한 사실(공판기록 281쪽), ⑨ 앞서 본 바와 같이 (명칭 생략)대학은 2003년에 간호과 학생 등 서울 실습생의 숙소 문제를 해결하려고 2억 5천만 원의 예산을 편성할 때 서울에 있는 아파트를 임차할 계획이었는데, 은마상가 (지번 생략)호의 용도는 새마을회관이어서 주택법에 의한 용도 변경 없이 대학 기숙사로 사용할 수 없었고, 피고인 3 등이 강남구청에 가서 용도 변경을 시도했으나 용도 변경이 되지 않았던 사실(공판기록 194쪽, 545~546쪽), ⑩ 또한, 당시 은마상가는 임의경매가 진행 중이었고, 은마상가 (지번 생략)호에서는 공소외 12가 ”미래입시학원“을 운영하면서 공소외 3 주식회사의 명도 요청에 응하지 않고 있어 피고인 3이 2003. 8. 25. 공소외 12를 상대로 명도소송을 제기한 상태였던 사실(수사기록 1,932~1,933쪽), ⑪ 당시 (명칭 생략)대학에서는 공소외 3 주식회사에 임대차보증금 명목으로 돈을 보내기는 했으나 실제로 (명칭 생략)대학에서 계약 내용대로 위 (지번 생략)호를 사용할 수 있다고는 생각하지 않았기 때문에 기숙사 공사의 착수시기나 공사 규모, 공사업자 선정 등에 대하여 관심을 갖고 있지 않았음에도 공소외 2로부터 위 B블럭에 기숙사 공사를 시작하라는 지시를 받은 피고인 1이 공소외 13 등 공사업자에게 위 기숙사 공사를 의뢰하여 그 공사업자가 (명칭 생략)대학과 공사계약을 체결한 후 위 기숙사 공사가 이루어진 사실[공판기록 196쪽, 347~348쪽, 수사기록 2,142~2,143쪽(수사기록 2,142쪽과 2,143쪽은 쪽수 기재 착오로 2회 등장하는데 이 부분은 공소외 8에 대한 검찰 진술조서의 18쪽과 19쪽에 해당)], ⑫ (명칭 생략)대학에서 아파트를 임차할 경우 임대차보증금과 임대료만 지출하면 됨에도 불구하고 이 사건에서 (명칭 생략)대학은 위 (지번 생략)호를 기숙사로 사용하기 위한 시설 공사비까지 지출한 사실, ⑬ 한편, (명칭 생략)대학이 공소외 3 주식회사로부터 위 (지번 생략)호 일부(380평)를 임대차 기간 2003. 9. 3.부터 2005. 9. 2.까지로 하여 임대차보증금 19억 원에 임차한다는 내용의 2003. 9. 3.자 임대차계약서가 현존하고 있는데(수사기록 888쪽), 위 임대차보증금 19억 원짜리 임대차계약서는 2003. 9. 3.에 작성된 것이 아니라 (명칭 생략)대학에서 위와 같이 공소외 3 주식회사에 2003. 9. 4. 2억 6,500만 원을 송금한 외에 추가로 2003. 10. 7. 8억 1,700만 원, 2003. 10. 10. 8억 1,800만 원을 송금한 후에 그 합계 19억 원을 임대차보증금으로 하여 작성한 것이고, 공소외 5가 2003. 9. 5.경 위 2억 6,500만 원의 지출결의서에 소급하여 결재할 당시에 지출결의서에 첨부된 2003. 9. 3.자 임대차계약서의 임대차보증금은 19억 원이 아니었던 사실(공판기록 281~282쪽, 수사기록 3,829~3,830쪽), ⑭ 피고인 1은 위와 같이 (명칭 생략)대학에서 공소외 3 주식회사로 돈을 송금할 무렵마다 공소외 2로부터 ”언제까지 얼마를 받아라“ 또는 ”언제까지 얼마가 입금될 것이다“라는 말을 듣고는 (명칭 생략)대학의 실무자에게 ”얼마의 자금이 필요하니 송금하라“고 지시하여 돈을 받았고, 그 무렵마다 공소외 3 주식회사에서 계약서 작성 실무를 담당하던 공소외 10과 상의하여 임대차보증금을 증액한 새로운 계약서를 2003. 9. 3.자로 날짜를 소급하여 작성하여 (명칭 생략)대학의 교비지출 원인서류로 사용하도록 하였는데, 이러한 이유로 위와 같이 임대차보증금이 19억 원인 2003. 9. 4.자 임대차계약서가 존재하고 있는 사실(공판기록 192쪽, 수사기록 4,032~4,033쪽), ⑮ 위 2억 6,500만 원을 비롯하여 (명칭 생략)대학에서 임대차보증금이나 임대료 명목으로 공소외 3 주식회사의 계좌로 입금한 돈은 공소외 3 주식회사 등 공소외 2 중심으로 운영되어 온 회사들의 운영자금과 임직원의 급여 및 (명칭 생략)철강 재인수준비 비용 등에 지출된 사실(공판기록 194쪽)을 인정할 수 있다.

In light of the above facts, at the time of September 4, 2003, he remitted KRW 265 million to Nonindicted Co. 3 at the (name omitted) university (name omitted) university to the private teaching institute on September 4, 2003, he was used by Nonindicted Co. 12 for the above (name omitted) university without having any physical facilities available for use as a dormitory for Seoul Trainees at the (name omitted) university (name omitted) university, and the practice of the (name omitted) university did not have any idea to rent the above (number omitted). However, Defendant 2 entered into a false lease agreement with Nonindicted Co. 3 on the above (name omitted) under the direction of Nonindicted Co. 2 and entered into the said lease agreement with Nonindicted Co. 3 on September 26, 2003, or actively transferred funds belonging to the (name omitted) university’s tuition account from September 25, 2003 to July 14, 2003 to the above 300 million (name omitted), or actively recognized the above fact that Defendant Co. 3100, Ltd.

In light of the above facts, even if it is not false to lease the said (number omitted) No. 265 million won from Nonindicted Co. 3, but true, in light of the above facts of recognition, the lease of the said (name omitted) No. 200 million won by the university appears to have been conducted for the purpose of promoting the interests of Nonindicted Co. 2 rather than promoting the interests of the university (title omitted) that (name omitted) university should establish a dormitory for Seoul Trainees, and thus, the Defendants cannot be exempted from the liability for the crime of embezzlement in the event of their intent to obtain unlawful acquisition required in the crime of embezzlement.

Next, in the university (title omitted) the sum of the rent of KRW 11,088,00 paid on March 24, 2005 and April 13, 2005 to Nonindicted Co. 3 Co., Ltd. on two occasions, as recognized by the lower court, the above KRW 11,08,00 is deemed to have been paid at the university (title omitted) as rent for KRW 103 for the convenience of the Roman Family Co., Ltd. on the part of Nonindicted Co. 3. However, as seen earlier, inasmuch as the instant lease agreement between the university (title omitted) and the Nonindicted Co. 3 Co., Ltd. on KRW 103 for the convenience of the Roman Family Co., Ltd. is also a false lease agreement, Defendant 2 entered into a false lease agreement and disbursed funds belonging to the accounts of school expenses on the pretext of the lease and used funds or actively participated in such agreement by Nonindicted Co. 2, Defendant 1, and 3 shall be deemed to constitute embezzlement in itself.

In addition, even if the above 103 of the above 103 of the university was actually used as a dormitory, in light of the facts acknowledged from the 12th to 21th of the decision of the court below, it is deemed that the university (title omitted) used funds belonging to the accounts of school expenses under the above 103 of the above 103 of the above 10th of the decision of the court below for the purpose of promoting the interest of Nonindicted 2 rather than promoting the interest of the university (title omitted). Thus, the defendants' intent to obtain illegal gains required in the crime of embezzlement cannot be exempted from the liability of embezzlement.

Furthermore, as seen earlier, the Defendants’ act constitutes a violation of the Private School Act due to the disbursement of the said money inasmuch as the Defendants entered into a false rental agreement and embezzled funds belonging to the school expenses accounts of the university (title omitted) under the name of KRW 25 million,08,000 as the name of the lease deposit amount, and as long as the funds belonging to the school expenses accounts of the university (title omitted) were embezzled.

Therefore, the prosecutor's above assertion is with merit.

(2) As to embezzlement of KRW 200 million in the name of increase in the deposit for the lease of a dormitory on convenience for the Defendants and violation of the Private School Act

The court below held that the defendants embezzled 200 million won or committed a violation of the Private School Act under the pretext of increasing lease deposit, on the grounds stated in the 40 to 42 pages and 45 pages of the decision of the court below. The decision of the court below is just and there is no error of law by misunderstanding facts or misunderstanding the legal principles on embezzlement, etc., and thus, the above assertion is without merit.

3. Conclusion

Therefore, the prosecutor's appeal as to the violation of the Private School Act is without merit, and it is dismissed in accordance with Article 364 (4) of the Criminal Procedure Act, since the defendants conspired in collusion with the defendants on April 19, 2005 for embezzlement of KRW 200,000 for school expenses of (title omitted) university under the name of lease deposit money.

In addition, the court below erred by misunderstanding that the above facts charged constituted a case where there is no proof of crime by misunderstanding that the defendants embezzled lease deposit money 265 million won and partial rents, and that violation of the Private School Act was committed by the defendants 1 and 2 as facility management service costs, and that the above facts charged constituted a case where there is no proof of crime. Meanwhile, the remaining facts charged against the defendants guilty and the above facts charged are concurrent crimes under the former part of Article 37 of the Criminal Act, and the judgment of the court below's conviction cannot be exempted from the whole reversal without further examining the grounds for appeal of unfair sentencing by the defendants and the prosecutor. Thus, the judgment of the court below is reversed pursuant to Article 364 (2) and (6) of the Criminal Procedure Act, and it is again decided as follows after pleading.

Criminal facts

Defendant 1 is an auditor of Nonindicted Co. 3 and a representative director of Nonindicted Co. 7, who was in charge of the management and disbursement of the funds of said Co., Ltd., Defendant 3 is the representative director of Nonindicted Co. 3, who was in charge of the management and disbursement of the said Co., Ltd., and Defendant 2 is the person who was in charge of the management and disbursement of the funds of Nonindicted Co. 3 as the representative director of the said Co. 3, and Defendant 2 was in charge of the lease business,

Around March 2003, the creditor of the company (title omitted) filed an application for an auction with respect to Mail Family Co., Ltd., the creditor of the company (name omitted), who is the non-indicted 2, on the other hand, while there is no other way to raise necessary funds for the non-indicted 3, etc., (title omitted) the acquisition of steel and the project cost and wages of employees of the above company, etc., and the (title omitted) university affiliated with the non-indicted 1's private teaching institute (title omitted) closed a hospital located in Samsungdong-dong (title 1 hospital omitted), Gangnam-gu, Seoul (title omitted 2 hospital), including the above hospital (title omitted 2 hospital) with the budget of KRW 2.50 million per year as the school of Samsungdong-dong, Seoul (title omitted 3 hospital omitted), and when the resolution of the board of directors of the non-indicted 2 and the non-indicted 3 et al. entered into a lease agreement with the non-indicted 4 and the non-indicted 500 billion won (title omitted) in the name omitted).

1. Defendants:

(name omitted)The university could not transfer or lend the revenue belonging to the school expense accounts to other accounts under the circumstance that only 2.5 million won was compiled for the purpose of the above dormitory for the purpose of the above dormitory, and the use of the Roman street (number omitted) is the Saemaul Community Center, and 103 Eas convenience Dong 103 cannot be used as a university dormitory without any change in the purpose of the Housing Act as an educational, cultural and welfare facility. However, according to the direction of Nonindicted 2, Defendant 3 unilaterally prepared a false lease contract under the direction of Nonindicted 2 and sent it to the (title omitted) university, and Defendant 2, who is in charge of managing the affairs such as the disbursement of the expenses of the university (title omitted) university, in collusion with Nonindicted 3 Co. 2 to transfer the deposit money corresponding to the above contract money corresponding to the above contract to the principal of the university. Defendant 3 again requested the above funds to be disbursed to Nonindicted Co. 3 Co. , Ltd. by falsely preparing the deposit money in the name of the lease contract for a certain period.

A. On September 4, 2003, at the office of the non-indicted 3 Co., Ltd. located in the Gangnam-gu Seoul Special Metropolitan City (number omitted), the amount of KRW 265 million for the faculty members of the university (name omitted) was transferred as a lease deposit in the same way until November 29, 2004 by the same method as shown in attached Table (1), including the transfer of KRW 6.43 billion in total to the account of the non-indicted 3 Co., Ltd. 3, the sum of KRW 6.6 million in total over 11 times, as shown in attached Table (1) is embezzled;

B. On November 25, 2003, Nonindicted Co. 3 received a total of KRW 147,08,000 from Nonindicted Co. 3 to the account of Nonindicted Co. 3 as above in the same manner, including the remittance of KRW 9.2 million to the said account of Nonindicted Co. 3 as rent, by the same method until April 13, 2005 in the same manner as shown in the attached crime list (2), and embezzled it by receiving a total of KRW 147,08,00 for 11 times as shown in the attached crime list (2);

2. Defendant 1 and 2

Notwithstanding the fact that the income belonging to the school expenses accounts cannot be transferred or lent to other accounts, Nonindicted Co. 3 et al. conspired to use the necessary funds for the (title omitted) university faculty members as operating expenses of Nonindicted Co. 3 et al. while keeping the accounts as provisional payments;

On November 27, 2003, at the school principal office of the university (title omitted), Defendant 2 approved a false disbursement resolution stating that the provisional payment of KRW 50,000 is paid to Nonindicted 8, who is the director of the accounting division of the university (title omitted), and Defendant 1 received KRW 50,000 from the university (name omitted), in his new bank, the five hundred million won of the tuition of the university, in his new apartment branch account (Account Number omitted) by the same method until December 29, 2003, as shown in attached Table 1 (3), and embezzled it by receiving KRW 192,81,000 in total four times in total, as shown in attached Table 1, and embezzlement it;

3. Defendant 1 and 2

Notwithstanding the fact that the income belonging to the school expenses accounting cannot be transferred or lent to other accounts, in order to raise funds necessary for the operation, etc. of Nonindicted Co. 3, etc., Nonindicted Co. 7 made a false facility management service contract with the content that Nonindicted Co. 7 would put five facilities managers, etc. into the dormitory in the college (title omitted) located in (title omitted) university located in (title omitted) university and provide management services, such as cleaning, by inserting five facilities managers, etc., and then (title omitted) the university would make an embezzlement of the school expenses of the (title omitted) university under the custody of Defendant 2 by paying the school expenses to Nonindicted Co. 7 as monthly service expenses.

In the office of Nonindicted Co. 7 on December 18, 2003, the transfer of KRW 2,5760,000 to the South Korea Bank's bank account (Account Number omitted) by the same method until July 21, 2004, including the transfer of KRW 2,5760,000 to the South Korea Bank's bank account (Account Number omitted) from the office of Nonindicted Co. 7, a total of KRW 190,320,00 won of the (title omitted) university (name omitted), as shown in attached Form No. 4, shall be embezzled

4. Defendant 1 and 2

No income belonging to the accounts of school expenses may be transferred or lent to other accounts, and around October 2003, Defendant 1 demanded that Nonindicted 5 enter into a (title omitted) university dormitory facility construction contract with Nonindicted 14, who is a construction business operator of the (title omitted) university construction corporation, according to Defendant 1’s above demand, and Defendant 2 entered into a contract for the construction of dormitory facilities with the said company, etc. at Defendant 1’s request, and paid KRW 92,119,00 as the above dormitory construction cost around December 10 of the same year after the completion of the above dormitory on November 28 of the same year, and around December 15 of the same year (title omitted) university used the above dormitory. Thus, on December 21, 2004, Defendant 2 did not need additional construction of (title omitted) dormitory facilities in the convenience Dong, regardless of the need for additional construction on December 21, 2004.

When the investigation into the crime of the above Paragraph (1) was conducted on December 2004, in order to avoid the crime, Nonindicted 2 ordered Defendant 1 to construct a dormitory at convenience clubs. Defendant 1, who is the construction business operator, arbitrarily requested Nonindicted 14 to construct a dormitory at the college (title omitted) at a size of 103 287 square meters, and ordered Nonindicted 6, the head of the (title omitted) university planning office, to notify the construction of the above construction cost and to disburse the above construction cost. Defendant 2, regardless of the decision-making of the university, in collusion with Defendant 1, regardless of the above duties to prevent the unfair disbursement of the school cost through the construction of convenience accommodation facilities, in violation of this agreement, to enter into a contract with Nonindicted 240,000,000,000 won for convenience dormitory facilities and equipment with the construction cost of KRW 4,619,00,000,0000,000,000,000,000).

(Name omitted) At the university on March 24, 2005, the above construction project operator paid a total of KRW 200 million to obtain financial benefits equivalent to the above construction cost, and at the same time at the university (title omitted), there is a loss equivalent to the above amount;

5. Defendant 1

In collusion with Nonindicted 2 to use the funds for the above illegal profits by means of money transfer to a bank account in the name of Defendant 1 or by employees of Nonindicted Co. 3 through cash transfer for the purpose of pretending illegal profits acquired through the crime of paragraph 1 above, making it considerably difficult to specify, track, or detect the above illegal profits, and in collusion with Nonindicted 2 to use them;

On October 13, 2003, the New Bank of Korea, located in 316, Gangnam-gu, Seoul, has withdrawn KRW 60,000 through the account under the name of the non-indicted 7 stock company by cashier's checks, and immediately deposited in full the above bank account under the name of the defendant 1, and then withdrawn in cash on the same day and delivered it to the non-indicted 2, as well as in the manner described in the attached list of crimes (5) and the list of crimes (6) more than 62 times in total, as shown in the attached list of crimes from October 9, 2003 to December 13, 2004.

Summary of Evidence

The summary of the evidence of the facts constituting the crime recognized by this court is as shown in the corresponding column of the judgment of the court below, and thus, it is quoted in accordance with Article 369 of the Criminal Procedure Act.

Application of Statutes

1. Article applicable to criminal facts;

A. Defendant 1

(1) The embezzlement of lease deposit and school expenses under the name of the rent: Comprehensively, Article 3(1)1 of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes, Article 356, Article 355(1), Article 30, and the main text of Article 33 of the Criminal Act

(2) The point of each occupational embezzlement: Articles 356, 355(1), 30, and the main sentence of Article 33 of the Criminal Act (the name of the crime against Defendant 1 under the main sentence of Article 33 of the Criminal Act applies to the occupational embezzlement, and the punishment under the proviso of the same Article applies to the punishment provided for the simple embezzlement).

(3) The point of occupational breach of trust: Articles 356, 355(2), 30, and the main text of Article 33 of the Criminal Act (the name of the crime against Defendant 1 under the main sentence of Article 33 of the Criminal Act applies to the crime of occupational breach of trust, and the punishment under the proviso of the same Article applies to the crime of occupational breach of trust, and the punishment

(4) Criminal Proceeds Concealment: Article 3(1)3 of the Act on the Regulation and Punishment of Criminal Proceeds Concealment, collectively, and Article 30 of the Criminal Act

(5) Violation of each Private School Act: Articles 73-2 and 29(6) of the Private School Act, Article 30 of the Criminal Act, and the main sentence of Article 33 of the Criminal Act

B. Defendant 3

(2) Violation of the Private School Act: Articles 73-2 and 29(6) of the Private School Act, Article 30 of the Criminal Act, and the main sentence of Article 33 of the Criminal Act, inclusive.

C. Defendant 2

(2) The point of each occupational embezzlement: Articles 356, 355(1), and 30 of the Criminal Code

(3) Occupational breach of trust: Articles 356, 355(2), and 30 of the Criminal Act

(4) Violation of the Private School Act: Articles 73-2, 29(6) and 30 of the Private School Act; and

1. Commercial competition;

Articles 40 and 50 of each Criminal Code : each Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Embezzlement), each Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Embezzlements), each Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Embezzlements), each Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Embezzlements), each

1. Selection of punishment;

(a) Defendant 1: Violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Embezzlement) and each occupational embezzlement (each of the punishments provided for in the embezzlement), violation of the Act on the Regulation and Punishment of Criminal Proceeds Concealment, and violation of the Act on the Regulation and Punishment of Criminal Proceeds Concealment;

(c) Defendant 3: The crime of violating the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Embezzlement).

(d) Defendant 2: The crime of violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Embezzlement), each crime of occupational embezzlement, and imprisonment with prison labor;

1. Aggravation of concurrent crimes (Defendant 1, 2);

Article 37 (former part of Article 37, Article 38 (1) 2, and Article 50 of each Criminal Code [Aggravation of concurrent crimes with punishment prescribed in the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Embezzlement) which is the most severe punishment];

1. Discretionary mitigation;

Articles 53 and 55(1)3 of the Criminal Act. Article 55(1)3 of the same Act (Taking into account the fact that part of the amount of embezzlement has been returned)

1. Inclusion of days of pre-trial detention (Defendant 1);

Article 57 of the Criminal Act

1. Suspension of execution (Defendant 1, 3);

Article 62(1) of the Criminal Act (Considerations such as where part of the amount of embezzlement has been returned)

It is so decided as per Disposition for the above reasons.

【Attachment List omitted】

For judges in the first instance and second instance (Presiding Judge)

심급 사건

-서울중앙지방법원 2006.2.3.선고 2005고합828

서울고등법원 2007.11.1.선고 2006노407

-대법원 2008.2.29.선고 2007도9755

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