Whether it is possible to readily conclude the intention of unlawful acquisition of occupational embezzlement solely with the use of budget items;

The intent of unlawful acquisition in the crime of occupational embezzlement refers to the intention to dispose of another's property in violation of his/her duties for the purpose of pursuing the benefit of himself/herself or a third party, such as that of his/her own property. Thus, where a person in a position to execute the budget uses the budget to fill the shortage of expenses, not for his/her own interest, but for his/her own interest, the purpose of the item of the budget itself is illegal, or where the budget uses the budget to fill the shortage of expenses, apart from the cases where the use of the budget is strictly limited, it cannot be readily concluded that the disbursement could have been permitted if the disbursement is conducted through certain procedures, on the sole basis of the fact that the use for filling the interval was useful.

Article 356 of the Criminal Act

Supreme Court Decision 85Do2212 decided Jul. 8, 1986 (Gong1986, 1139) 85Do2698 decided Oct. 14, 1986 (Gong1986, 3058) 87Do1901 decided Oct. 10, 1989 (Gong1989, 1705)

Defendant

Prosecutor

Seoul Criminal Court Decision 94No1867 delivered on October 5, 1994

The appeal is dismissed.

The prosecutor's grounds of appeal are examined.

The intent of unlawful acquisition in the crime of occupational embezzlement refers to the intention to dispose of another's property in violation of his/her duties for the purpose of pursuing the benefit of himself/herself or a third party, such as that of his/her own property or in law. Thus, if a person in a position to execute the budget uses the budget to fill the shortage of expenses, not for his/her own interest, but for his/her own interest, the use of the item of the budget itself is illegal if the budget is useful for the budget to fill the shortage of expenses, or the use of the budget is strictly limited, apart from the case where the use of the budget is set at its original purpose or it is necessary to reach a certain procedure, if the expenditure can be allowed, it cannot be readily concluded that the person has the intention of unlawful acquisition on the sole basis of the fact that there was useful use to fill the interval (see Supreme Court Decision 87Do1901, Oct. 10, 1989).

Upon examining the reasoning of the judgment below in light of the records, in this case where the defendant, the chief executive officer of Yeung 1, purchased an electronic computer system to be installed in the above credit cooperative at the request of employees who lack office operation expenses, and did not appropriate the money received from the above credit cooperative as a separate revenue from the above credit cooperative, and the chief executive officer of the above credit cooperative deposited the money into the personal deposit passbook opened and managed in the defendant's parent's name due to the reasons stated in his/her reasoning, and paid for the management of the office such as expenses for night employees, personnel meeting expenses, estimated gift expenses for executives and employees, and expenses for purchasing office fixtures, etc., the court below affirmed the judgment of the first instance which acquitted the defendant on the ground that there is no evidence to prove that the defendant had an intent to illegally obtain the above discounted amount at the time of deposit in the above deposit passbook, and there is no error of law by misapprehending the legal principles as to the intent of unlawful acquisition

In addition, the above decision of the court below is not contrary to the opinion of the above decision of the Supreme Court cited by a member of the party, but rather in accordance with it, and it is not appropriate that the decision of the party member citing the issue is different from this case.

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

Justices Park Jong-ho (Presiding Justice)