[1] The meaning of the intent of unlawful acquisition in the crime of occupational embezzlement

[2] The case holding that the use of the temple property by a person granted the authority to manage and dispose of the temple property does not constitute the crime of occupational embezzlement

[1] For the crime of occupational embezzlement to be established, a person who takes custody of another person's property in violation of his/her occupational duty shall either embezzled or refuse to return such property (Articles 356 and 355 (1) of the Criminal Act). Here, the intent of unlawful acquisition refers to the intention of disposal in fact or in law, such as where a person who takes custody of another person's property owns another person's property in violation of his/her occupational duty for the purpose of pursuing his/her own interest or a third party's interest.

[2] The case holding that even if a person who had been responsible for the operation of the inspection since the construction of the inspection was granted the authority to manage and dispose of the inspection property and used the inspection property for hospital treatment expenses and scholarship payments, it does not constitute an occupational embezzlement

[1] Articles 355(1) and 356 of the Criminal Act / [2] Articles 355(1) and 356 of the Criminal Act

[1] Supreme Court Decision 99Do4923 decided Mar. 14, 2000 (Gong2000Sang, 101) Supreme Court Decision 2000Do4005 decided Dec. 27, 2000 (Gong2001Sang, 410) Decided July 9, 199

Defendant 1 and one other

Prosecutor

Law Firm Rated Law Office, Attorney Lee Jin-young

Suwon District Court Decision 99No537 delivered on September 30, 1999

All appeals are dismissed.

The grounds of appeal are examined.

1. As to the mistake of facts due to the violation of the rules of evidence and empirical rules

According to the reasoning of the judgment below, the court below affirmed the judgment of the court of first instance which acquitted the defendant on the ground that there is no sufficient evidence to acknowledge each charge of forging private documents, uttering of an investigation document, and attempted fraud even after examining all the evidence presented in the case in light of records

In light of relevant evidence and records, the above recognition by the court below is just and acceptable, and there is no violation of the rules of evidence and the misconception of facts due to violation of the rules of experience. This part of the grounds for appeal cannot be accepted.

2. As to the misapprehension of legal principles as to the crime of forging private documents

According to the reasoning of the judgment of the court of first instance maintained by the court below, the court of first instance held it difficult to view that the defendants had the intent to forge, even if it was issued in his name without the prior consent of the Kim Jong-dae who held office as the president on the retroactive date or without the prior consent of the president of the General Affairs Office, inasmuch as it is recognized that the certificate of private car registration and the chief executive officer who held office were issued lawfully in accordance with the contents of the legally issued identification card.

In light of relevant evidence and records, the above recognition and determination by the court below is just and acceptable, and there is no violation of law by misunderstanding the legal principles of the crime of forging private documents. This part of the grounds for appeal cannot be accepted.

3. As to the misapprehension of legal principles as to occupational embezzlement

For the crime of occupational embezzlement to be established, a person who holds another's property in violation of his/her duties with the intent of unlawful acquisition shall either embezzled or refuse to return such property (Articles 356 and 355 (1) of the Criminal Act). Here, the intent of unlawful acquisition refers to a person who disposes of another's property in fact or by law, such as where the person who keeps another's property owns another's property in violation of his/her duties for the purpose of pursuing his/her own or a third party's interest (see, e.g., Supreme Court Decisions 98Do408, Jul. 9, 199; 200Do4005, Dec. 27, 2000).

(4) According to the records, Defendant 1 purchased approximately nine square meters for non-indicted 1's non-indicted 1's non-indicted 8's non-indicted 1's non-indicted 1's non-indicted 1's non-indicted 1's non-indicted 1's non-indicted 1's non-indicted 1's non-indicted 1's non-indicted 1's non-indicted 1's non-indicted 1's non-indicted 1's non-indicted 1's non-indicted 1's non-indicted 1's non-indicted 1's non-indicted 1's non-indicted 1's non-indicted 1's non-indicted 1's non-indicted 1's non-indicted 1's non-indicted 1's non-indicted 1's non-indicted 1's non-indicted 1's non-indicted 9's non-indicted 1's non-indicted 1's non-indicted 1's non-indicted 1's non-indicted 1's non-6's non-indicted 1's non-party

The prosecutor pointed out in the appellate brief that Defendant 1’s use of part of the above money as personal hospital treatment expenses and scholarships constitutes occupational embezzlement. However, according to the records, the inspection of the non-indicted 1 can be recognized that the above defendant used part of the above money for hospital treatment expenses instead of paying remuneration to Defendant 1, so it cannot be deemed as occupational embezzlement. In light of the aforementioned facts and records, the fact that Defendant 1 donated part of the above money as scholarships cannot be viewed as using the money in violation of his duties, and there is no evidence to acknowledge it otherwise.

Therefore, in light of the aforementioned legal principles and factual relations, although the first instance court maintained by the court below did not have some inappropriate points for its expression in its explanation, the measures that Defendant 1 acquitted Defendant 1 on the grounds that Defendant 1 cannot be deemed to constitute an occupational embezzlement, as stated in the facts charged, on the ground that Defendant 1’s use of the money constitutes an occupational embezzlement, is justifiable, and there is no error in the misapprehension of legal principles as to the occupational embezzlement. This part of the grounds for

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

Justices Seo-sung (Presiding Justice)