[1] In a case where a branch or an unlimited partnership company’s branch or an unlimited partnership’s branch is operated by a separate independent accounting system from its principal office or principal office’s accounting, whether the property owned by the branch or branch’s branch’s individual ownership (negative)

[2] In a case where a certified public appraiser working at a certified public appraisal corporation branch raises part of money kept by an appraisal corporation for the purpose of using it for entertainment expenses in the name of entertainment expenses, etc., the case affirming the judgment below holding that the creation of the above funds constitutes occupational embezzlement

[1] In order to establish embezzlement, the status of a person who holds another's property should be determined by the Civil Act, the Commercial Act, and other substantive laws. According to the Commercial Act, a branch or an unlimited partnership company is not a legal person or a right holder separate from a stock company or an unlimited partnership company, but a subordinate organization belonging to a stock company or an unlimited partnership company. Thus, even if a branch or an unlimited partnership company is operated in a separate independent bond system from the accounts of the principal office or the unlimited partnership company, the property owned by the branch or an unlimited partnership company's branch is merely the ownership of the stock company or unlimited partnership company, and does not constitute an individual ownership of the branch or an unlimited partnership company's branch or an unlimited partnership company's branch.

[2] The case affirming the judgment below holding that the defendants' act of raising funds constitutes a crime of occupational embezzlement in light of the following: in case where appraisers employed by the appraisal corporation branch had raised part of the money kept by the appraisal corporation for the purpose of arbitrarily dividing the above branch into entertainment expenses in the name of entertainment expenses, etc., and the defendants had agreed to distribute economic profits arising from the appraisal and assessment business conducted by the branch, since the defendants merely agreed to do so, it cannot be deemed as the above corporation's funds under the law, and the defendants' intent of unlawful acquisition at the time of raising funds was objectively expressed in light of the purpose of raising funds, etc.

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

[1] Supreme Court Decision 2003Do3516 Delivered on October 10, 2003

Defendant 1 and five others

Defendants

Law Firm Sejong and 1 other

Seoul High Court Decision 2008No2554 decided January 16, 2009

All appeals are dismissed.

The grounds of appeal are examined.

1. As to the Defendants’ ground of appeal on the Defendants’ occupational embezzlement

In order to establish embezzlement, the status of a person who keeps another’s property should be determined by the Civil Act, the Commercial Act, and other substantive laws (see, e.g., Supreme Court Decision 2003Do3516, Oct. 10, 2003). According to the Commercial Act, a branch office or an unlimited partnership company is not a legal person or a right holder separate from a stock company or an unlimited partnership company, but a branch office of a stock company or an unlimited partnership company is a subordinate organization belonging to a stock company or an unlimited partnership company. Thus, even if a branch office of a stock company or an unlimited partnership is operated by an independent accounting method separate from the principal office of a stock company or an unlimited partnership company’s principal office, the property owned by a branch office or an unlimited partnership company is merely the ownership of the stock company or unlimited partnership company, and it does not constitute a legal personality and does not constitute an individual’s ownership

Furthermore, in the establishment of the crime of occupational embezzlement, the intent of unlawful acquisition should be the same as the owner of another person's property in his/her custody in violation of his/her duties or for the purpose of pursuing the benefit of himself/herself or a third party. In addition, a corporation's funds, not listed in the corporate accounting book, but managed separately from the account book by the operator or the manager of the corporation, are not funds for the purpose of separate management from the account book. In light of the motive, method, period, method, method of storage, actual purpose of use, etc. of the funds, if the creation is not for the corporation's purpose, but for the purpose of collecting the funds of the corporation, it can be deemed that the intent of unlawful acquisition was realized by the act of raising funds itself (see Supreme Court Decision 2008Do9574, Apr. 9, 200).

According to the reasoning of the judgment below, the court below acknowledged the facts as stated in its adopted evidence, and found that the defendants operated the business branch office of the non-indicted corporation (△△ Corporation up to May 2004) as an independent fund accounting system (hereinafter referred to as the "sports branch office") to be operated as an independent fund accounting system, and determined that the defendants' act of raising funds cannot be deemed as having objectively indicated the defendants' unlawful acquisition intent at the time of raising funds in light of the purpose of raising funds for the first time, the developments leading up to raising funds, the purpose of raising funds for the second time, the use of funds for the second time, and the management status of funds for the funds for the second time, and it cannot be deemed that the defendants' act of raising funds for the non-indicted corporation's funds constitutes a justifiable act that does not go against the social rules, and thus, it cannot be deemed that the above defendants' act of raising funds for the funds for the purpose of raising funds for the above △△ corporation's funds for the purpose of keeping funds for the purpose of 16.3 billion won among the above public appraisers' funds for their own funds.

In light of the above legal principles and records, the above judgment of the court below is just, and there is no violation of the rules of evidence, the establishment of occupational embezzlement, or the misapprehension of legal principles as to legitimate acts, as otherwise alleged in the ground of appeal.

2. As to the ground of appeal on Defendant 6’s violation of the Act on the Registration of Real Estate under Actual Titleholder’s Name

Examining the evidence selection and fact-finding in light of the records, unless it is contrary to logical and empirical rules, the court below is justified in maintaining the judgment of the court of first instance which found Defendant 6 guilty of the above facts-finding in its reasoning, and there is no violation of the rules of evidence or misapprehension of the legal principle as otherwise alleged in the ground of appeal.

3. Conclusion

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

Justices Kim Young-ran (Presiding Justice)