[1] Standard for determining whether the expenditure from the accounts for school expenses is permissible under the former Private School Act and subordinate statutes / The meaning of “other accounts” that prevent the transfer or lending of the income belonging to the accounts for school expenses under Article 29(6) of the former Private School Act (i.e., all accounts other than the pertinent accounts for school expenses)

[2] Whether embezzlement is established in a case where a private school’s income belonging to the accounts of school expenses is used for any purpose other than that included in the lawful accounts of school expenses (affirmative)

[3] In a case where an operator or a manager of a corporation has no relation with a corporation or separate funds for the purpose of taking them back for personal purposes, whether the intent of unlawful acquisition of occupational embezzlement is recognized in itself (affirmative), and the standard for determining whether the act was intended to take the corporate funds back by deducting the corporate funds from the corporation (affirmative)

[4] Whether the legal or de facto consignment relationship between the custodian of the property and the owner of the property (or other principal right holder) should exist in order to establish the crime of embezzlement (affirmative)

[5] In a case where a non-identification person commits an occupational embezzlement in collusion with his/her identification person, the method of punishment against the non-identification person

[1] Article 29(1), (2), and (6) of the former Private School Act (Amended by Act No. 11622, Jan. 23, 2013); Article 73-2 of the Private School Act; Article 13(2)1, 2, and 5 of the Enforcement Decree of the Private School Act / [2] Article 355(1) of the Criminal Act; Article 29(1), (2), and (6) of the former Private School Act (Amended by Act No. 11622, Jan. 23, 2013); Article 13(2)1, 2, and 5 of the Enforcement Decree of the Private School Act / [3] Article 355(1), and 356 of the Criminal Act / [4] Article 355(1) and 356 of the Criminal Act

[1] [2] Supreme Court Decision 2007Do9755 Decided February 29, 2008 (Gong2008Sang, 491), Supreme Court Decision 201Do12408 Decided May 10, 2012 (Gong2012Sang, 1046), Supreme Court Decision 2013Do145 Decided March 28, 2013 / [1] Supreme Court Decision 2001Du7138 Decided February 5, 2002 (Gong2002Sang, 684 decided September 28, 2005) / [209Do209 decided August 28, 2014] Supreme Court Decision 2005Do3929 Decided September 29, 2014

Defendant 1 and one other

Defendants

Attorney Park Jong-soo et al.

Suwon District Court Decision 2014No3343 decided October 23, 2014

The part of the lower judgment against Defendant 1 is reversed, and that part of the case is remanded to the Suwon District Court Panel Division. Defendant 2’s appeal is dismissed.

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. As to the Defendants’ ground of appeal on the Defendants’ occupational embezzlement and violation of the Private School Act

Article 29(2) of the former Private School Act (amended by Act No. 11622, Jan. 23, 2013; hereinafter the same) provides that the expenditure of school expenses shall be the expenses prescribed in each subparagraph of Article 13(2) of the Enforcement Decree of the same Act, which provides for matters concerning the expenditure of school expenses by delegation of Article 29(2) of the same Act, and includes personnel expenses and goods expenses necessary for school operation (No. 1), expenses for facilities and equipment directly necessary for school education (No. 2), and other expenses (No. 5), which are directly necessary for school education (see, e.g., Supreme Court Decisions 200Du7138, Feb. 5, 2002; 200Du97138, Mar. 28, 2013). Thus, whether the revenue from school expenses accounts constitutes the expenditure of school expenses, which is allowed by the private school juristic person’s own account, should be determined by whether it is directly necessary for school education (see Supreme Court Decision 2000Do205000, supra.

Examining the reasoning of the lower judgment in light of the aforementioned legal principles and the evidence duly admitted by the first instance court, the lower court is justifiable to have determined that the Defendants conspired to commit each crime of occupational embezzlement and violation of the Private School Act in relation to the accounts of school expenses on the grounds stated in its reasoning. In so doing, contrary to what is alleged in the grounds of appeal, the lower court did not err by exceeding the bounds of the principle of no punishment without the law, by exceeding the bounds of the principle of no punishment without the law, by exceeding the bounds of the principle of no punishment without the law, by exceeding the bounds of the principle of no punishment without the law, by

2. As to the ground of appeal on Defendant 1 (hereinafter in this paragraph “Defendant”)’s embezzlement in the course of business against the Industry-Academic Cooperation Foundation

A. On November 12, 2009, the lower court found the Defendant as the head of the planning and coordination office of the ○○○○○○ University (hereinafter “○○○ University”)’s corporate account and embezzled the said money in collusion with Nonindicted 1 and 2 for the purpose of using it without any connection with the industry-academic cooperation foundation, by withdrawing KRW 9,484,00, which is the balance of the account, in cash around November 12, 2009 and paying the Defendant to the head of the planning and coordination office of the ○○○○○○○○○○ University (hereinafter “instant school foundation”), while the head of the ○○○○○○ University and Nonindicted 2 deposited a personal account in the name of Nonindicted 1 and 2, and kept it for business purposes. However, on November 13, 2009, the lower court affirmed Nonindicted 1 and 2’s criminal intent to create the funds by itself for the purpose of non-party 1 and 2’s execution of the said funds by requesting the Defendant’s final management of the funds.

B. First, we examine whether the act of raising Nonindicted 1 and Nonindicted 2’s funds or the act of disposal thereafter constitutes occupational embezzlement.

1) For the purpose of establishing a crime of occupational embezzlement, an intention of unlawful acquisition should be the same as the person’s own property in his/her custody in violation of his/her occupational duties for the purpose of pursuing the benefit of himself/herself or a third party. Even if an operator or a manager of a corporation created a secret by using a corporation’s funds, it is difficult to recognize an intention of unlawful acquisition if it is merely a division of account books for making it difficult for a third party, other than a corporation owner, to discover the secret funds, or it is recognized as a means of raising funds necessary for the operation of a corporation. However, if the operator or manager of a corporation, not for a corporation, but for a corporation, has created a secret fund separately for personal purposes without any connection with a corporation, or for personal purposes, it can be deemed that the intent of unlawful acquisition has been realized by the act of creation. In such case, whether the person was the purpose of withdrawing the corporation’s funds should be determined by comprehensively taking into account the nature of the corporation’s funds and the motive, method, period, method of storage, method of storage, and actual usage (see, etc.).

2) According to evidence duly adopted by the court below at the time of the first instance court's request, the head of the non-indicted 1 was discussed with the employees of the non-indicted 2 foundation to take measures to raise funds for the project of the non-indicted 1 foundation when the payment of the government subsidy is suspended in the future. The employees of the non-indicted 2 foundation including the non-indicted 1 and the non-indicted 2 were to open separate accounts in order to prepare for the redemption of the funds to the National Treasury and to manage the funds transparently. The non-indicted 1's personal account was kept under the name of the non-indicted 1, the non-indicted 2 foundation's name and the non-indicted 2 foundation's non-indicted 3 foundation's non-indicted 1's non-indicted 2 foundation's non-indicted 0 foundation's non-indicted 2 foundation's non-indicted 2 foundation's non-indicted 3 foundation's non-indicted 1 foundation's non-indicted 2 foundation's non-indicted 1 foundation's non-indicted 2 foundation's financial foundation's account.

Examining the above facts in light of the legal principles as seen earlier, it is difficult to recognize that Nonindicted 1 and Nonindicted 2 had no relation with the foundation of the foundation of the foundation of the foundation of the foundation of the foundation of the foundation of the foundation of the foundation of the foundation of the foundation of the foundation of the foundation of the foundation of the foundation of the foundation of the foundation of the foundation of the foundation of the foundation of the foundation of the foundation of the foundation of the foundation of the foundation of the foundation of the foundation of the foundation of the foundation of the foundation of the foundation of the foundation of the foundation of the foundation of the foundation of the foundation of the foundation of the foundation of the foundation of the foundation of the foundation of the foundation of the foundation of the foundation of the foundation of the foundation of the foundation of the foundation of the foundation of the foundation of the foundation of the Republic of Korea

C. Next, we examine whether the defendant is in a de facto position as a custodian of the business of the foundation for industry-academic cooperation and whether the punishment imposed on the crime of occupational embezzlement is legitimate.

1) The principal agent of embezzlement shall be a custodian of another’s property. Here, the custody refers to the possession of property through a consignment relationship. Thus, for the crime of embezzlement, there is a legal or de facto consignment relationship between the custodian of the property and the owner of the property (or other principal authority) (see Supreme Court Decision 2009Do9242, Jun. 24, 2010). In addition, for the crime of occupational embezzlement, “business” refers not only to a job or duty, but also to the duties according to the law, contract, or duties according to the status of repeating the same act without de facto or de facto or without asking (see Supreme Court Decision 2000Do5597, Jul. 10, 201).

Meanwhile, since the crime of occupational embezzlement is a person who takes custody of another person's property in the course of business, if a person without such status has committed an occupational embezzlement in collusion with a person with whom such status exists, punishment provided for in the crime of simple embezzlement should be imposed pursuant to the proviso of Article 33 of the Criminal Act for the person without such status (see Supreme Court Decisions 87Do1901, Oct. 10, 1989; 201Do6676, Nov. 15, 2012).

2) According to the reasoning of the lower judgment and the evidence duly admitted by the first instance court maintained by the lower court, it may be revealed that the management of the funds of the industry-academic cooperation foundation was not the Defendant’s principal director, who is the head of the planning and coordination division of the ○○○○○○○○ Cooperative, and that the Defendant did not intervene in the creation and management of the funds of the said industry-academic cooperation foundation and did not know thereof. The fact that the Defendant, upon the request of Nonindicted 1 and Nonindicted 2, deposited the funds of the said industry-academic cooperation foundation into the instant school foundation in the name of donation. As seen earlier, it is difficult to find evidence to find that the Defendant instructed the establishment of the funds of the industry-academic cooperation foundation before receiving the request for the management of the said funds of the said funds from Nonindicted 1 and Nonindicted

Examining the above facts in light of the legal principles as seen earlier, it cannot be deemed that the Defendant, upon the request of Nonindicted 1 and Nonindicted 2, was in the position of keeping the said funds by the legal or de facto consignment relationship with the industry-academic cooperation foundation, by knowing the existence of the said funds and receiving them for the instant school juristic person.

Therefore, even if the defendant received the entrustment of handling of the above funds and recognized that he conspireds with the act of occupational embezzlement by Nonindicted 1 and Nonindicted 2, the defendant who has no status as a custodian of the business should be sentenced to the punishment provided for the crime of simple embezzlement by the proviso of Article 33 of the Criminal Act.

Nevertheless, the court below recognized the status of a person in charge of occupational custody and sentenced the defendant to the punishment prescribed in the crime of occupational embezzlement. In such a case, the court below erred by exceeding the bounds of the principle of logic and experience and the principle of free evaluation of evidence, misapprehending the legal principles as to a person in charge of occupational custody, omitting the application of the proviso of Article 33 of the Criminal Act, thereby adversely affecting the conclusion of the judgment. The ground of appeal

3. Scope of reversal

Since there exists a ground to reverse the part of the judgment of the court below regarding Defendant 1’s embezzlement of non-party 1’s non-party 1’s act of business embezzlement, the remaining judgment of the court below against Defendant 1 for whom one punishment is imposed should also be reversed in relation to concurrent crimes under the former

4. Conclusion

Therefore, the part of the lower judgment against Defendant 1 is reversed, and that part of the case is remanded to the lower court for further proceedings consistent with this Opinion. Defendant 2’s appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kwon Soon-il (Presiding Justice)