(영문) 대법원 2018.7.26.선고 2016도781 판결

The conviction portion of the judgment of the court below is reversed, and that part of the case is remanded to the Changwon District Court Panel Division.

Reasons

The grounds of appeal are examined.

1. The summary of the facts charged in the judgment of the court below is as follows.

The Defendant, while operating the “C Child Care Center” in Dong Young-si, and the “E Child Care Center (hereinafter collectively referred to as each of the instant Child Care Center) located in B, received basic infant care fees and other necessary expenses from the guardians of infants registered in each of the instant Child Care Center, and kept childcare fees and other necessary expenses from the guardians of infants registered in the instant Child Care Center. (1) The Defendant, even though her husband F was not working as a driver from the “C Child Care Center,” her husband F was not working as a driver.

From August 26, 2013 to August 27, 2013, a sum of KRW 15,100,000 on 28 occasions as indicated in the table of crime in [Attachment I] as indicated in the lower judgment, embezzled the amount of money owned by the victims of the Republic of Korea, Gyeongnam-do, Si, Do, and infant guardians. (2) From August 21, 2010 to September 2013, the Defendant, as indicated in the table of crime Nos. 2 of the lower judgment, embezzled the Defendant’s total sum of KRW 3,772,710 on 142 occasions as indicated in the table of crime No. 2 of the lower judgment, 3,000 from 21 to 21, 213, as stated in the table of crime No. 2 of the lower judgment, the Defendant embezzled the Defendant’s total amount of money owned by the victims, 3,000,000,0000.

2. The crime of embezzlement is a crime punishing a person who keeps another’s property to embezzled such property. As such, in order to constitute embezzlement, the property subject to embezzlement is required to be owned by another person. It is established that another person’s act of using funds for purposes other than for a limited purpose upon being entrusted with a strictly limited purpose of use is by itself realizing the intent of unlawful acquisition.

In full view of each provision of the Infant Care Act and legislative circumstances, the State or local governments are divided into bearing or subsidizing expenses incurred in infant care, rearing, or free infant care to their guardians pursuant to Articles 34 and 34-2 of the Infant Care Act and subsidizing expenses incurred in infant care services to the operators of child care centers pursuant to Article 36. In addition, where the State or local governments issue infant care services vouchers to their guardians pursuant to Article 34-3 (1) and (3) of the Infant Care Act and Article 35-3 (1) of the Enforcement Rule of the Infant Care Act and offer and settle the voucher to their protectors to the child care centers, the State or local governments shall pay the expenses equivalent to the amount used to the infant care services to their guardians pursuant to Article 34 (1) of the Act, which is given by the State or local governments to the guardians of infants and children (see Supreme Court Decision 2012Du28032, Jun. 12, 2014).

Infant care fees and necessary expenses paid by infant care guardians of child care centers prescribed by the Infant Care Act shall not be limited to the purpose and purpose of use of the child care center by the infant guardian who reserved the ownership until used for the specified purpose, but shall be owned by social welfare corporations or managers, who establish and operate the child care center, upon receipt of the payment. However, the income is merely that the purpose of use is strictly limited according to the relevant Acts and subordinate statutes.

3. Review of the reasoning of the lower judgment and the evidence duly admitted reveals the following facts.

The Defendant received childcare fees from the guardians of infants with "child care service vouchers issued as a usage card for infant care services" to support childcare expenses according to the Infant Care Act, and received cash or account transfer (such as expenses incurred in purchasing goods not included in infant care fees and expenses of the nature of actual expenses incurred in special activities, field learning, etc. which do not belong to ordinary infant care programs; hereinafter referred to as "necessary expenses").

For the operation of each child-care center of this case, the Defendant received subsidies, such as basic infant-care fees (a subsidy partially subsidized child-care expenses), and other subsidies (emergency food expenses, cooling and heating expenses, etc.) from the Republic of Korea, the Gyeongnam-do, and the Si/Gun/Gu.

While the Defendant managed childcare fees, necessary expenses, and subsidies through a deposit account opened in the name of a C childcare center, the Defendant used part of the aforementioned charges for personal purposes as stated in the facts charged.

4. We examine the legitimacy of the judgment of the court below that found the Defendant guilty. (1) In accordance with the aforementioned legal principles, childcare fees and necessary expenses that the Defendant received from the guardians of infants and children will be owned once by the Defendant who operates each of the child care centers of this case, and the infant guardians shall not be deemed to fall under the money that the Defendant entrusted only with the purpose and use of the child care center. On the other hand, the subsidies that the Defendant received from the State and local governments constitute subsidies under Article 2 subparagraph 1 of the Subsidy Management Act, which constitute the subsidies that the State and local governments provided by the State and local governments, shall be deemed to fall under the money entrusted with

On the other hand, in the deposit account opened in the name of a child care center as above, in addition to the above subsidies granted by the Defendant from the State and local governments, the amount of money that the Defendant received from the infant’s guardian and was owned by the Defendant, including childcare fees and necessary expenses, and borrowings, etc. As a result, the above subsidies that can be the object of embezzlement are mixed with the general funds and thus cannot be specified (see Supreme Court Decisions 2009Do8769, Mar. 25, 2010; 2010Do8648, Feb. 24, 2011).

Therefore, even if the Defendant used some of the funds stored in the deposit account in the name of a childcare center for personal purposes, it is difficult to readily conclude that the funds entrusted exclusively for the purpose and purpose are used for another purpose.

(2) Nevertheless, the lower court found the Defendant guilty of this part of the charges on the following grounds. In other words, ① Child care fees and necessary expenses that the operator of a child care center received from the infant’s guardian for the operation of the child care center, and subsidies that the State and local governments received from the State and local governments for the establishment and operation of the child care center fall under the amount entrusted only to

② Although other funds used by the Defendant cannot be deemed as embezzlement, the entire amount of the funds used by the Defendant cannot be deemed as embezzlement, it is clear that the funds were embezzled for personal purposes. As such, the amount is not embezzlement. (3) In so doing, the lower court erred by failing to exhaust all necessary deliberations, exceeding the bounds of the principle of free evaluation of evidence in violation of logical and empirical rules, or by misapprehending the legal doctrine on the objects of embezzlement, thereby adversely affecting the conclusion of the judgment.

5. Scope of reversal

In the instant case where only the Defendant appealed, the part of the judgment of the court below, which was found not guilty, became final and conclusive as both parties did not appeal, is the only part of the conviction.

6. Conclusion

Therefore, without further proceeding to decide on the remaining grounds of appeal, the part of the judgment below's conviction is reversed, and the case is remanded to the court below for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.