[1] Whether embezzlement is established in a case where a partner arbitrarily disposes of the shares in the business property or makes a voluntary consumption of the proceeds from the sale of the business property (affirmative)

[2] In a case where a partner who did not make a settlement of profits and losses among the partners embezzled his/her business property, the scope of embezzlement (=the entire amount of embezzlement)

[3] The case affirming the judgment below holding that in case where the defendant and Gap corporation formed a business partnership agreement and agreed to transfer the business right to Eul corporation and distribute profits at the same ratio, and the defendant arbitrarily consumeds most of them without Gap's representative director Byung's consent during the custody of partial down payment transferred to Eul corporation, the case affirming the judgment below that the defendant bears the responsibility for crime of embezzlement against the whole amount consumed voluntarily regardless of the ratio of shares

[1] Since the business property belongs to the partnership of the partner, as long as the partner exists in the partnership relationship, the partner is not entitled to dispose of the shares of the business property at his own discretion, and if he arbitrarily consumess the shares of the partner at his own discretion or during the custody of the proceeds acquired from the disposition of the business property, he cannot be exempted from the liability of embezzlement.

[2] If a partner did not settle a profit and loss among the partners, the partner does not have the right to dispose of the business property belonging to the partnership of the partners at his own discretion. Thus, if a partner who kept the business property at his/her own discretion during the custody of the business property, he/she shall be liable for the crime of embezzlement against the whole amount embezzled regardless of

[3] The case affirming the judgment below to the purport that in a case where the defendant and Gap corporation formed a partnership business agreement with each other to operate a collective housing building project in the name of Gap corporation, and entered into an agreement to transfer and acquire business rights to Eul corporation, and agreed to distribute profits after deducting the expenses from the above transfer proceeds at the same ratio, but the defendant voluntarily withdrawn most of the contract deposit transferred to Eul corporation's account to Eul corporation and consumed it for personal purposes without Gap's representative director Byung's consent while keeping the part of the contract deposit transferred to Gap corporation's account, the case affirming the judgment below to the same effect that even if the defendant is in a partnership business relationship with Gap corporation, the crime of embezzlement cannot be exempted for all of the amount consumed at will regardless of

[1] Article 35 (1) of the Criminal Code, Articles 703 and 704 of the Civil Code / [2] Article 355 (1) of the Criminal Code, Articles 703 and 704 of the Civil Code / [3] Article 355 (1) of the Criminal Code, Articles 703 and 704 of the Civil Code

[1] [2] Supreme Court Decision 2009Do7423 Decided October 15, 2009 / [1] Supreme Court Decision 81Do2777 Decided September 28, 1982 (Gong1982, 1039) / [2] Supreme Court Decision 2000Do3013 Decided November 10, 200 (Gong2001Sang, 87) Supreme Court Decision 2006Do8105 Decided February 22, 2007

Defendant

Defendant

Law Firm Barun, Attorney Park Jae-sik

Daejeon District Court Decision 2009No3180 Decided December 9, 2010

The appeal is dismissed.

The grounds of appeal are examined.

Since the business property belongs to the partnership of the partner, as long as the partnership relationship exists, a partner has no authority to dispose of his/her shares in the business property at will, and if a partner voluntarily disposes of his/her shares or consumess the proceeds acquired from the disposition of the business property in his/her custody, he/she may not be exempted from the liability of embezzlement. In addition, if the partner did not settle the profit and loss distribution among the partners, a partner does not have the authority to dispose of the business property belonging to the partnership of the partner voluntarily. Thus, if a partner arbitrarily embezzleds his/her business property during his/her custody, he/she is liable for the crime of embezzlement against all the amount arbitrarily embezzled regardless of his/her share ratio (see Supreme Court Decision 2009Do7423, Oct. 15, 2009, etc.).

According to the reasoning of the judgment below and the evidence duly admitted by the court below, the defendant and the victim non-indicted 1 corporation entered into a business partnership agreement with each other to operate the business of building collective housing (hereinafter "the business of this case") in the Gyeonggi-gun under the name of the non-indicted 1 corporation (hereinafter "the business of this case") and carried out the business of this case, and the non-indicted 2 corporation and the non-indicted 1 corporation decided to transfer the business of this case to the non-indicted 2 corporation at KRW 2 billion of transfer price (hereinafter "the contract of this case"). The contract of this case was concluded with the non-indicted 2 corporation and the non-indicted 1 corporation to distribute profits after deducting expenses from the above transfer price of this case at KRW 50:50,00,000 to the non-indicted 1 corporation's corporate account, and the defendant could not arbitrarily withdraw 100,000 won of the contract of this case without the consent of the non-indicted 3 corporation's representative director of the non-indicted 1 corporation, in light of the legal principle of embezzlement.

Therefore, the judgment of the court below which found the defendant guilty on the whole amount of embezzlement at will is just and acceptable, and there is no violation of the rules of logic and experience and the principle of free evaluation of evidence, nor there is an error of law by misunderstanding the legal principles on embezzlement.

Therefore, the appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Ahn Dai-hee (Presiding Justice)