[1] In a case where a trustee uses another person's money in his/her custody as an intention to preserve the money after temporary use, and actually preserves the money so that it does not go against the purpose of the entrustment, whether the crime of embezzlement can be recognized (negative)

[2] In a case where Gap company was indicted for taking part of the government contribution which was received and kept in accordance with the Industrial Technology Development Project Agreement concluded with the Korea Industrial Technology Institute, and the defendant, a representative director of the above company, withdrawn it and used it for a purpose not related to technology development, the case holding that the judgment below which found the defendant guilty of violating the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Embezzlement) even though it is difficult to recognize the intent of unlawful acquisition even if the above government contribution was temporarily used for other

[1] In order to establish the crime of embezzlement, the defendant must have the intention to obtain unlawful acquisition, and the intent to obtain unlawful acquisition in the crime of embezzlement refers to the intention that a person who keeps another's property in his/her own possession of the property without authority contrary to the purpose of entrustment for his/her own interest or a third party's interest disposes of the property. Thus, if the defendant, who is the trustee, uses another's property in his/her custody as a temporary use and as a compensation intention for the property, and if it does not go against the purpose of entrustment

[2] In a case where Company A was indicted for using government contributions from the Korea Institute of Industrial Technology Evaluation and Planning which was delegated by the Ministry of Commerce, Industry and Energy with the Ministry of Commerce, Industry and Energy to develop growth engine technology projects and entered into an agreement on the development project of industrial technology, and the defendant, the representative director of the above Institute, withdrawn part of the government contributions and used them for the purchase cost of raw materials and wages, etc. other than the original purpose and usage of the above task, the case held that the court below found the defendant guilty of the violation of the above government contributions in light of the following facts: while the above government contributions were used as a general operating fund account of the above company and managed them in combination with other funds, the company's general operating funds were used first in a circumstance where it was urgently necessary, but it was preserved for more than one month after deposit of the government contributions into the above account, and the amount was used for the original purpose of the government contributions, and the above government contributions was carried out without any interruption of the implementation of the above development project, and the defendant's execution of each annual government contributions was difficult to be used within three years.

[1] Article 355 (1) of the Criminal Code / [2] Articles 355 (1) and 356 of the Criminal Code, Article 3 (1) of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes

[1] Supreme Court Decision 2005Do3045 Decided August 19, 2005 (Gong2005Ha, 1536), Supreme Court Decision 2005Do3431 Decided June 2, 2006 (Gong2006Ha, 1292), Supreme Court Decision 2004Do5167 Decided November 10, 2006, Supreme Court Decision 2010Do399 Decided May 27, 2010

Defendant

Both parties

Kim Jong-hee

Law Firm Barun, Attorneys Yan-sik et al.

Seoul Central District Court Decision 2009Gohap1361 Decided February 11, 2010

The judgment of the court below is reversed.

The defendant shall be innocent.

1. Summary of grounds for appeal;

A. Defendant (De Facto misunderstanding or misunderstanding of legal principles)

Pursuant to the industrial technology development project agreement entered into with the Korea Industrial Technology Evaluation Institute (hereinafter “Industrial Technology Evaluation Institute”), Nonindicted Co., Ltd. received government contributions from Busan to the deposit account in the name of the foreign exchange bank in the name of the Nonindicted Co., Ltd., and the ownership of the said deposited money belongs to the Nonindicted Co., Ltd., the deposit owner of the said account. Since the Defendant, a representative director of the Nonindicted Co., Ltd, used the said money for a non-indicted Co., Ltd., it cannot be deemed as embezzlement of other’s property even if it

In addition, the defendant, at the time of the shortage of operating funds of the non-indicted corporation, temporarily used the government contributions received from the reputation for other purposes of the company, and tried to use them for the original purpose by preserving the above government contributions with other funds of the company, and ultimately, did not use the above government contributions for other purposes of the non-indicted corporation or for the personal purpose of the defendant.

Nevertheless, the lower court found the Defendant guilty of the facts charged of the instant case, which erred by misapprehending the legal doctrine on the identity of another person or intent of unlawful acquisition of property in the crime of occupational embezzlement.

(b) An inspection;

The sentencing of the court below (two years of suspended sentence in one year and six months of imprisonment) is too unhued and unfair.

2. Summary of the facts charged in this case

The Defendant, from September 2003 to September 2003, is a person who has been working as a representative director of a non-indicted stock company with the purpose of manufacturing an employment storage cell and has overall control over the business of the Defendant

Around July 1, 2005, Nonindicted Co., Ltd., the Defendant’s management, was selected as an institution in charge of the project for the “HEV strawer development” project, which is a growth engine technology project promoted by the Ministry of Commerce, Industry and Energy, and entered into an agreement on the project for the development of industrial technology with the mountain field, which is entrusted by the Ministry of Commerce, Industry and Energy to select, follow-up management, supervision, and evaluation of the project. From the mountain level, the Nonindicted Co., Ltd., upon delegation of the project from the Ministry of Commerce, Industry and Energy, entered into the said agreement on the project for the development of industrial technology with the mountain field, which is a sum of KRW 1.35 million, such as the foreign exchange bank account (Account Number omitted) in the name of the Nonindicted Co., Ltd., Ltd., in relation to the said project.

The Defendant was obligated to use the government contributions received from the crym for the aforementioned technology development project only for the limited purposes, such as research equipment and facility costs related to the development of technology, in accordance with the standards set forth in the above Convention.

Nevertheless, on August 31, 2005, the Defendant voluntarily consumed KRW 883,308,788 as shown in the [Attachment Table] of the lower judgment from around October 12, 2007, including the withdrawal of KRW 95,543,791, which was used as purchase cost, etc. of raw materials unrelated to the development of the aforementioned technology, and embezzled KRW 883,308,788, total amount of government contributions from around 19 times to October 12, 2007.

3. The judgment of the court below

The lower court found the Defendant guilty of the instant facts charged by comprehensively taking account of the adopted evidence.

4. Judgment of the court below

The money entrusted with the purpose and purpose shall be deemed to be reserved until it is used for the specified purpose and purpose. Thus, even if the government contributions were transferred to the account in the name of the non-indicted stock company, if the ownership of the money is reserved until it is used for the task of “HEV supersp development project”, which is the purpose and purpose of the use, to the truster, the ownership of the money is reserved to the mountain (state) and if the defendant arbitrarily uses it for any purpose other than the limited purpose, the crime of embezzlement shall be established.

However, in order to establish embezzlement, the defendant must have the intention of unlawful acquisition, and the intention of unlawful acquisition in embezzlement refers to the intention of a person who keeps another's property for his own or a third party's interest to dispose of the same property as his own without authority, contrary to the purport of the entrustment. Thus, if the defendant, the trustee, uses another's money in custody as a temporary use, and actually uses it as an intention to preserve it, and if it does not go against the purpose of the entrustment, it cannot be said that there is an intention of unlawful acquisition.

As seen earlier, the summary of the facts charged of this case is as follows: (a) the Defendant withdrawn part of the funds deposited in the general operation fund account (Account Number omitted) of the non-indicted stock company with the government contributions from the cirraculation as above, and then used them as the purchase cost, salary, etc. of raw materials not for the original purpose and purpose of the above development project from August 31, 2005 to September 27, 2005; and (b) the time and amount of use is 367,856,318 won from September 25, 2006 to October 18, 2006 to 367,856,318 won, and from September 14, 2007 to October 14, 2007.

However, comprehensively taking account of the evidence duly adopted and examined, the Defendant: (a) was aware of the fact that the above amount of 00 million won was deposited in the above general account on August 19, 2005 (the first government contribution); (b) 435 billion won on September 20, 206 (the second government contribution); and (c) 435 million won on September 10, 2007 (the third government contribution omitted); and (d) was transferred to the above general account of the foreign exchange bank (the third government contribution) for more than 00 billion won (the Defendant’s KRW 90 million out of the first government contribution received on August 25, 2005; and (d) it was difficult to recognize that the amount of 10 billion won was deposited in the above general account for more than 50 billion won; and (e) the amount was transferred from 200 billion won on September 10, 2005 to 205.

Therefore, although the facts charged in this case constitute a case where there is no proof of crime, the court below found the defendant guilty. The court below erred by misapprehending the legal principles as to the intent of illegal acquisition of the crime of violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Embezzlement), which affected the conclusion of the judgment. Thus

5. Conclusion

Therefore, since the appeal by the defendant is well-grounded, the judgment of the court below is reversed in accordance with Article 364(6) of the Criminal Procedure Act, and it is again decided as follows.

The summary of the facts charged of this case is as stated in Paragraph (2) above, and as stated in Paragraph (4) above, it constitutes a case where there is no proof of crime, and thus, a judgment of innocence is rendered under the latter part of Article 32

Judges Choi Jae-in (Presiding Judge)