[1] The meaning of the intention of unlawful acquisition in embezzlement

[2] The case holding that the intention of unlawful acquisition is recognized on the ground that the foreign debt is not a debt approved by the school juristic person, but a debt is not a debt approved by the school juristic person and is done at will against the will of the school juristic person, in case where the person who was the president of the school juristic person has repaid the foreign debt borne by the school juristic person at the time of his/her own fund to collect the loan and offered the certificate of deposit

[1] The intent of unlawful acquisition in the crime of embezzlement refers to the intent of a custodian of another's property without authority to dispose of the property as if he/she owns it for his/her own interest or for a third party's interest, and thus, if the custodian disposes of it for the benefit of the owner, it shall be deemed that there was no intent of unlawful acquisition.

[2] The case holding that the intention of unlawful acquisition is recognized on the ground that the foreign debt is not a debt approved by the school juristic person, but a debt is not a debt approved by the school juristic person and is done at will against the school juristic person's will, in case where the person who was the president of the school juristic person has repaid the foreign debt borne by the school juristic person at the time of working as the president's own funds and then has offered the certificates of deposit

[1] Article 355 (1) of the Criminal Code / [2] Article 355 (1) of the Criminal Code

[1] Supreme Court Decision 81Do3009 delivered on March 9, 1982 (Gong1982, 451) Supreme Court Decision 86Do824 delivered on February 25, 1986 (Gong1986, 587), Supreme Court Decision 86Do824 delivered on April 28, 1987 (Gong1987, 920), Supreme Court Decision 89Do382 delivered on September 12, 1989 (Gong1989, 1529), Supreme Court Decision 95Do2551 delivered on September 6, 1996 (Gong196Ha, 3069) (Gong197Do1863 delivered on September 30, 197).

Defendant 1 and one other

Prosecutor

Attorney Ansan-gu et al.

Daejeon High Court Decision 98No82 delivered on August 13, 1999

The non-guilty part of the judgment below shall be reversed, and that part of the case shall be remanded to the Daejeon High Court.

1. Of the facts charged in this case, the summary of the judgment of the court below acquitted Defendant 1 as the president of the university established and operated by the non-indicted school juristic person (hereinafter referred to as the "school juristic person") from March 1, 1993 to February 28, 197. Defendant 2 has worked as the director in charge of accounting and accounting of the above school for the same period. Defendant 1 has been in charge of accounting affairs for the same period. Since the financial situation of the non-indicted juristic person (hereinafter referred to as the "non-indicted juristic person") which was personally operated by Defendant 1 has aggravated, the need to offer a discount of promissory notes from the financial institution due to the aggravation of the financial situation, it was offered to offer a certificate of bearer transfer deposit in custody for the school juristic person by purchasing the student's enrollment fees at the school juristic person as a collateral. From January 27, 1995 to March 25, 1997, the company received the total amount of KRW 1610,000,00 won of the bill as collateral.

2. The court below acknowledged that Defendant 1 provided the non-indicted corporation with a certificate of deposit worth KRW 16,140,00,00 which the Defendants had been in custody for 75 times as above and used as collateral to get discount from Daejeon Mutual Saving and Finance Company, etc. However, Defendant 1 consistently worked as the president of the school foundation from November 198 to the date he takes office as the president of the school foundation. Although it was not recorded in the account books of the school foundation at the time, the so-called non-indicted loans worth KRW 2,200,000,000, which were issued by the school foundation in the name of the above 75 times as above, were collected at the expiration of the maturity and had the president take office in the manner of issuing a new promissory note, and he paid it by proxy to the non-indicted corporation regardless of his liability, and there was no possibility that the defendant had no intention to use the above non-indicted corporation's debt in the form of a new bill of exchange with the president's account books at the time of the above school foundation's transfer.

3. The intent of unlawful acquisition in the crime of embezzlement refers to the intent of a custodian of another’s property without authority to dispose of the property as if he/she were his/her own property for his/her own interest or for a third party’s interest, and thus, if the custodian disposed of the property for the benefit of the owner, it may be deemed that there was no intent of unlawful

However, according to the facts acknowledged by the court below in this case, Defendant 1 issued and managed so-called additional debt owed by a school juristic person under the name of the school juristic person at the time when he works as the president of the school juristic person, and he cannot get a promissory note from the school juristic person after he moved to the president. Meanwhile, according to the evidence adopted by the court below, the above defendant requested an appointment agent who newly takes office as the president when he retires from the office of president of the school juristic person to manage the above additional debt by explaining the existence of the above additional debt, but he refused the above defendant's request. However, the above defendant's request cannot be recognized as the existence of the additional debt, and the school juristic person did not recognize the existence of the additional debt continuously asserted by the above defendant, and the school juristic person approves the additional debt as the obligation of the school juristic person, or there is no evidence to deem that the above defendant paid it by subrogation according to the intention of the school juristic person.

If so, even if the above defendant was given a discount on a promissory note of the non-indicted company that the defendant himself/herself operated in order to collect the repayment fund or the repayment of the repayment with personal funds, as argued by the above defendant in the school juristic person, the above defendant's act of raising funds to repay his/her obligations or paying his/her personal funds without permission cannot be deemed as an act for the benefit of the school juristic person, which is the owner of the bearer deposit certificate, unless the above defendant's act of offering funds to collect the repayment or offering the payment with personal funds without permission is deemed as an act for the benefit of the school juristic person, which is the owner of the bearer deposit certificate, unless the evidence adopted by the court of original judgment alone, is not an obligation approved by the non-indicted school juristic person and the above defendant's repayment without permission against the intent of the school juristic person.

Nevertheless, the court below rendered a not guilty verdict on the part of the facts charged on the ground that the above defendant did not have an intent to obtain unlawful acquisition, is erroneous in the misapprehension of legal principles as to the intent to obtain unlawful acquisition in the crime of embezzlement, or in violation of the rules of evidence, thereby affecting the conclusion of the judgment. Therefore

4. Therefore, the non-guilty part of the judgment below shall be reversed, and this part of the case shall be remanded to the court below. It is so decided as per Disposition.

Justices Cho Chang-chul (Presiding Justice)