2018 Highest 3616 Occupational embezzlement

1. A;

2. B

The public trial shall be held against the public prosecutor's identity, the misappropriation, and the public trial.

Attorney C (the national election for the defendant A)

Attorney D (Korean National Assembly for Defendant B)

July 24, 2019

Defendants shall be punished by imprisonment for six months.

However, with respect to Defendant B, the execution of the above sentence shall be suspended for two years from the date this judgment became final and conclusive. To order Defendant B to provide community service for 80 hours.

Criminal facts

Defendant A is a person who was in the accounting of the above apartment management office from January 201 to December 2016 at the Seongbuk-gu E Apartment Management Office of Changwon-si, Changwon-si. Defendant A is a person who was in the above apartment management office from February 2011 to November 201, and the Defendants were working as the members of the above apartment management office. The Defendants were working as the members of the above apartment management office and engaged in the management of the operating fund by entering and withdrawing the management expenses from the above apartment members in order to the occupants of the apartment.

1. Joint crimes committed by the Defendants

(a) Occupational embezzlement in the head of a Tong for management expenses;

On May 23, 2014, the Defendants conspired to keep the management expenses deposited in the Saemaul Bank Account (Number:F) in the course of business on behalf of the victim of the above apartment residents, and used them for personal purposes without any grounds, by withdrawing KRW 300,000 from the said account as a retirement reserve fund, without any reason, for personal purposes. From the above date to August 19, 2016, the Defendants arbitrarily consumed KRW 10,71,000 in total over 12 times from the above date and time to August 19, 2016. Accordingly, the Defendants embezzled the victim’s property under the occupational custody in collusion.

(b) Occupational embezzlement in the passbook of separate collection expenses;

From March 9, 201 to December 1, 201, the Defendants conspired to withdraw 160,000 won in cash from the above accounts for the above apartment residents who are victims, and then voluntarily consumed KRW 10,977,845 in total on 49 occasions from the above date and time to December 1, 2016, including the deposit in cash in the Saemaul Treasury (H) bank account under the name of the management office.

As a result, the Defendants conspired and embezzled the property of the victim who was under the custody of the company.

From November 15, 201 to June 201, the Defendants conspired to enter 1,303,50 won as the price of November in J 11, 201 and paid 1,232,500 won as the cable broadcasting cost of the actual amount to be paid, and paid the difference between the remaining 71,50 won and the remaining 71,50 won. From February 17, 2012 to June 2012, the Defendants arbitrarily consumed 495,00 won for a total of six times as stated in the list of crimes (3) in the annexed Form by the above method, the aforementioned difference from the above date to June 20, 2012.

As a result, the Defendants conspired and embezzled the property of the victim while on duty.

(d) Occupational embezzlements in water rates passbooks;

From September 23, 2011 to July 23, 2011, the Defendants conspired to enter the water rate of KRW 4,562,741 in the books of account for the victims of the above apartment, while keeping the water rate of KRW 4,562,741 in the register of accounts for the above apartment residents, the Defendants: (a) paid the amount equivalent to KRW 3,752,741 in the above account; (b) paid the remainder of KRW 809,940 in the amount actually paid; (c) paid the difference of KRW 3,752,80 in the amount of money; and (d) voluntarily withdrawn in cash and used it for personal use; and (d) arbitrarily consumed KRW 5,36,652 in total nine times from the above date to July 23, 2012, the Defendants embezzled the property of the victim while on duty in collusion. Accordingly, the Defendants embezzled the property of the victim.

(e) Occupational embezzlement in the head of a Tong;

From August 16, 2013, the Defendants conspired to make up for the total amount of KRW 1,802,291 in total three times from the above date to June 30, 2014, as shown in the separate crime list (5) in the following manner, while the retirement reserve deposited in the Saemaul Bank Account (number L: L) bank account in the name of the management office was kept on behalf of the victim of the above apartment resident, the Defendants voluntarily withdrawn cash of KRW 300,000 from the above account without any ground and arbitrarily used it for the personal purpose. Accordingly, the Defendants conspired and embezzled the victim’s property under the occupational custody.

2. Defendant A

(a) Occupational embezzlement in the passbook of separate collection expenses;

Around December 18, 2013, the Defendant: (a) opened an account under the name of the Defendant and kept separate collection expenses incurred for the said apartment residents on behalf of the said apartment residents, the victim; (b) in fact, the Defendant withdrawn KRW 552,00 under the pretext that he/she paid an armed robbery to the residents, and arbitrarily used them for the personal purpose; and (c) arbitrarily consumed the total of KRW 2,427,000 from the above date to December 14, 2015 by the aforementioned method, as shown in the list of crimes (6). Accordingly, the Defendant embezzled the victim’s property under his/her occupational custody.

(b) Occupational embezzlement on the details of payment of four major premiums;

The Defendant, on March 11, 2016, kept the management expenses deposited in the bank account (number: F) under the name of the management office for the victim of the above apartment for his/her business on behalf of the resident of the above apartment, the Defendant, despite the termination of national health insurance, etc., the Defendant reported to the competent management office that he/she was working as an apartment management fee and reported the acquisition of the above national health insurance premium as an employee on March 10, 2016. On April 11, 2016, the Defendant voluntarily consumed KRW 4,720 from the above date to November 10, 2016, including arbitrarily withdrawing KRW 4,720 from the management fee account of the above management office for his/her own insurance premium, and then arbitrarily consumed KRW 594,740 under the name of national health insurance premium, national pension, industrial accident insurance premium, etc. for 30 times in total as indicated in the attached list of crimes (7).

As a result, the defendant embezzled the property of the victim who was in custody on duty.

Summary of Evidence

[Defendant A]

1. Partial statement of the defendant;

1. Legal statement of the witness B;

1. A protocol concerning the examination of the accused by the prosecution (including B or M);

1. The police statement of M or N;

1.0. Police suspect interrogation protocol for P and P;

1. A complaint and a written confirmation;

1. An application for audit results, copies of books, copies of passbooks, details of account transactions, data related to cash withdrawal and payment, and application for issuance of passbooks;

[Defendant B]

1. Defendant's legal statement;

1. The police statement of M or N;

1.0. Police suspect interrogation protocol for P and P;

1. A complaint and a written confirmation;

1. An application for audit results, copies of books, copies of passbooks, details of account transactions, data related to cash withdrawal and payment, and application for issuance of passbooks;

Application of Statutes

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

Articles 356, 355(1), and 30 of the Criminal Code (Selection of Imprisonment);

[Judgment as to the recognition of the facts charged by the Defendant A: The corresponding statement portion of the Defendant B is specific and consistent, as well as in accordance with the following circumstances. Comprehensively considering each of the above evidence, it can be sufficiently recognized that the Defendant conspired with B to collect management expenses in collusion with the head of Tong, separate collection expense passbook, cable broadcasting expense passbook, water fee passbook, and retirement expense passbook, and embezzled money as stated in the facts charged, using it for personal purposes.

In addition, it is recognized that the defendant received separate collection expenses and managed them for the occupants of apartment, and the details of each withdrawal or disbursement stated in the facts charged are not disbursed for the actual purpose related to the management of apartment, but can be recognized that the defendant arbitrarily consumed it and embezzled it. The data submitted by the defendant alone does not interfere with the fact-finding.

① During the above period, the Defendant, as a general secretary of the management office, conducted business affairs by checking the details of expenditure and the entry of the account book and affixing seals on the withdrawn money sheet prepared by B (no circumstance or circumstance to recognize that B had carried out business affairs at his/her own discretion is found).

The Defendant embezzled the difference in the water rates (the embezzlement was made from September 201 to July 201, 201, from April 201 to April 2014). The Defendant recognized that the dual withdrawal of the water rate for stairs cleaning (it was made once every five times from May 2015 to April 201) was conducted in collusion with B in collusion with B. Thus, it is reasonable to deem that the Defendant had been in a position to sufficiently grasping the withdrawal or embezzlement made with a similar method as to other passbooks during the period of his/her service. The statement made by B, at the direction of the Defendant or in collusion with the Defendant, from April 2013 to April 2014, is sufficiently persuasive.

③ From July 2, 2012 to February 28, 2013, Q had worked as the secretary of the apartment management office on behalf of the Defendant. During the aforementioned period, management expenses did not run a withdrawal or embezzlement in the same form as the facts charged through the passbook, the separate collection expense passbook, the cable broadcasting expense passbook, and the water fee passbook. This indicates the circumstance that it is difficult for the management office to perform such embezzlement as described in the facts charged without approval or involvement by the secretary of the management office).

1. Suspension of execution;

Article 62 (1) (Defendant B) of the Criminal Act

1. Social service order;

Article 62-2 (Defendant B) The reasons for sentencing are as follows: (a) comprehensively taking into account the following circumstances, the Defendant’s age, character and conduct, the details and circumstances of the instant crime, and the circumstances after the commission of the crime, and determine the sentence as ordered.

1. Defendant A

【Scope of Recommendation Based on Sentencing Criteria】

○ Type 1 (less than KRW 100,000) Basic Area ( Imprisonment between April and April 1 year)

【Determination of Sentence】

○ Unfavorable Circumstances: The Defendant was in the position to manage Defendant B’s account withdrawal and funding while working in the general affairs of the apartment management office, and the method of committing the instant crime that embezzled money for a long time while manipulating account books and the details of passbook withdrawal is very serious to the extent that the trust relationship is damaged. The amount of embezzlement exceeds 32 million won. The Defendant, without recognizing his/her own responsibility from the stage of audit and inspection by the council of occupants’ representatives, did not make full efforts to recover damage up until now.

The circumstances favorable to ○: The Defendant recognized a part of the crime, and repaid KRW 6.2 million out of the amount of embezzlement during the trial process. The Defendant has no record of being punished for the crime prior to the instant case.

2. Defendant B

【Scope of Recommendation Based on Sentencing Criteria】

○ Type 1 (less than KRW 100,000) Basic Area ( Imprisonment between April and April 1 year)

【Determination of Sentence】

○ Unfavorable Circumstances: The Defendant’s duty to account for the apartment management office in charge of the management office’s accounting of the account book and the collection details of the passbook that embezzled money over a long-term period of time is very serious in that the method of committing the instant crime is bad and the trust relationship is damaged. The amount of embezzlement exceeds KRW 29 million.

The circumstances favorable to ○: The Defendant recognized the instant crime, and cooperate in the relevant investigation procedures in good faith. In the early stage of the instant case, the Defendant agreed to repay KRW 8 million out of the amount of embezzlement to the victim, and completed reimbursement in accordance with the terms and conditions of the agreement. The Defendant had no record of being punished prior to the instant crime.

Judge Ho-ho,