Whether it can be recognized that the company's funds were embezzled with the intent of unlawful acquisition

Articles 355(1) and 356 of the Criminal Act; Article 308 of the Criminal Procedure Act

Supreme Court Decision 2007Do4784 Decided February 26, 2009, Supreme Court Decision 2009Do495 Decided April 23, 2009, Supreme Court Decision 2007Do6553 Decided April 29, 2010

Defendant 1 and one other

Prosecutor

Attorney Choi Dong-dong et al.

Seoul High Court Decision 2011No1810 decided October 7, 2011

All appeals are dismissed.

The grounds of appeal are examined.

1. Violation of the Financial Investment Services and Capital Markets Act by Defendant 1

Examining the reasoning of the judgment below in light of the records, the court below affirmed the judgment of the court of first instance which acquitted Defendant 1 on the above facts charged on the ground that it did not constitute a crime of violation of the Act on the Capital Market and Financial Investment Business at the time of submitting the business report to the Financial Services Commission and the Exchange, and that a person who is not a representative director or a director in charge of submitting the business report cannot be the subject of violation of the Act on the Capital Market and Financial Investment Business of this case, and that a representative director or a director in charge of submitting the business report cannot commit the above crimes in the form of indirect crime by using a representative director who did not act intentionally or a director in charge of submitting the business report, and contrary to what is alleged in the grounds of appeal, there was no

2. The Defendants’ violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Misappropriation of Trust)

Examining the reasoning of the judgment below in light of the relevant legal principles and records, it is acceptable for the court below to maintain the judgment of the court of first instance which acquitted the Defendants on the ground that there was no proof of a crime as to the violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Misappropriation) among the facts charged in this case against the Defendants. Contrary to what is alleged in the grounds of appeal, the court below did not err by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules, or by misapprehending

3. The Defendants’ violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Embezzlement)

In cases where the Defendants did not properly explain the whereabouts or the place of use of the company’s secret funds that the Defendants kept and managed, or where the funds used in the place of use claimed by the Defendants were revealed to have been used in a way different from that of the funds, there is insufficient evidence to acknowledge that the funds were used in the place of use claimed by the Defendants, and rather, there are many materials to prove that the Defendants used the funds for personal purposes, it may be presumed that the Defendants embezzled the funds with the intent of unlawful acquisition. However, if the Defendants provided explanation about the whereabouts or the place of use on the grounds that it is difficult to recognize the existence of the intent of unlawful acquisition, and there are materials corresponding thereto, barring such circumstance as where the Defendants used the funds for other purposes and separately deposited or returned the funds (see, e.g., Supreme Court Decision 2007Do4784, Feb. 26, 2009).

Examining the reasoning of the judgment of the court below in light of the aforementioned legal principles and records, it is acceptable to maintain the judgment of the court of first instance which acquitted the Defendants on the ground that there was no proof of crime as to the violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Embezzlement) among the facts charged in the instant case. Contrary to the allegations in the grounds of appeal, the court below did not err by exceeding the bounds of the principle of free evaluation of evidence in violation of logical and empirical rules, or by misapprehending the legal principles

4. The act of forging each private document against Defendant 1 and the act of utteringing each private document; and

On the other hand, the prosecutor appealed against Defendant 1 among the judgment below, but there is no statement in the petition of appeal and the appellate brief on the grounds of objection.

5. Conclusion

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

Justices Min Il-young (Presiding Justice)