Defendant 1 and one other

Both parties

Nowon-ro

Attorneys Kim Yong-hwan et al.

Gwangju District Court Decision 2008 Gohap11 Decided December 23, 2008

The judgment of the court below is reversed.

Defendant 1 (Defendants in the judgment of the Supreme Court) shall be punished by imprisonment with prison labor for a period of two years and six months, and by imprisonment for a period of one year and six months.

However, from the date this judgment became final and conclusive, the execution of the above punishment shall be suspended for three years for Defendant 1, and for two years for Defendant 2.

1. Summary of grounds for appeal;

A. Defendants

(1) Defendant 1

㈎ 사실오인 내지 법리오해 주장

(a) Whether the custodian was in office or not

The accounting manager of the ○○ University is the principal of the school, and the accounting manager of the ○ University affiliated with the ○ University (hereinafter “industry-academic cooperation foundation”) is the chief of the industry-academic cooperation foundation. Therefore, the Defendant, who was not the chief of the ○ University’s educational foundation, cannot be the subject of the crime of occupational embezzlement or the crime of violation of the Act on the Budgeting and Management of Subsidies concerning the National Subsidies relating to the Educational Expenses Accounting of the ○○ University and the Programs for Training Specialized Human Resources for M&C in 2005 (hereinafter “

(b)As to Section 1-A (i) of the facts constituting the crime indicated in the judgment below

From July 2005, Nonindicted Co. 2 acquired and executed the construction of the golf range at ○ University from Nonindicted Co. 6, and ○ University paid KRW 500 million to Nonindicted Co. 2 on September 27, 2005 in consideration of the loan obligation of KRW 400 million to Nonindicted Co. 6, and Nonindicted Co. 2 used it to the said Corporation. However, the lower court recognized that the Defendant embezzled the above KRW 500 million.

C. 1-1 of the facts constituting the crime set forth in the judgment below

around October 2006, Nonindicted 1 was pointed out by the Ministry of Education and Human Resources Development that the construction cost was paid in excess of the amount of construction work in relation to the flight training site work, etc., and the Defendant deposited KRW 245 million in the school expense account in lieu of the employees who committed misconduct in order to get a preference from the Ministry of Education and Human Resources Development and withdrawn it, and did not incur any loss in the school expense account, the lower court recognized that the Defendant embezzled the above KRW 245 million.

㈃ 원심 판시 범죄사실 제1의 가. ⑶항에 대하여

According to the Promotion of Industrial Education and Industry-Academic Cooperation Act, the instant industry-academic cooperation fund may be deposited and used in the school expense account of the industry-academic cooperation foundation. Accordingly, the Defendant used 300 million won out of the funds of the industry-academic cooperation foundation for the school expense account of the ○○ University. However, the lower court recognized that the Defendant embezzled the above 300

㈄ 원심 판시 범죄사실 제1의 나.항에 대하여

The Defendant lent the insufficient accounts for school expenses to ○○ University as a provisional loan, and only disposed of the money borrowed as a security for the convenience of accounting with the Defendant’s provisional loan, which was the president. The lower court recognized that the Defendant embezzled 1.4 billion won including the money repaid, while the Defendant properly lent it to the accounts for school expenses.

㈅ 원심 판시 범죄사실 제2의 가.항, 나.항에 대하여

In order to transfer part of the ○ University, Nonindicted School Foundation 1 purchased the transportation Dong (number 1 omitted), (number 2 omitted), and (number 3 omitted), and completed the registration of transfer of ownership in the name of ○ University (hereinafter “instant land”). In this regard, the Ministry of Education and Human Resources Development had sold the instant land in the form of KRW 1.59 billion to the largest purchaser and Nonindicted 4 in order to avoid the heavy taxation disposition by ○○ University Office. The Defendant was returned only when he deposited the purchase price in the form of ○○ University school expenses accounting, and the lower court recognized that the Defendant embezzled KRW 1.5 billion out of the purchase price.

㈆ 원심 판시 범죄사실 제2의 다.항에 대하여

An industry-academic cooperation foundation has disbursed KRW 460 million from the Ministry of Education and Human Resources Development to the research cost to be designated as a university specialized in the year 2006, and the defendant was only repaid to the industry-academic cooperation foundation. However, the court below recognized that the defendant embezzled the above KRW 460 million.

㈇ 원심 판시 범죄사실 제3항에 대하여

When Co-Defendant 2 entered into the supply contract, etc. related to the Industry-Academic Cooperation Fund in this case, the Defendant was unaware of the fact that he raised funds as the name of the school development fund. However, the Defendant ordered Co-Defendant 2, etc. to repay the funds that he borrowed in the name of Non-Party 7 with the funds of the Industry-Academic Cooperation Foundation. However, the lower court acknowledged that the Defendant, in collusion with Defendant 2, etc., embezzled

㈏ 양형부당 주장

In light of the background leading up to the instant crime and the amount contributed by the Defendant to Nonindicted School Foundation 1, the sentence of the lower court (a community service order of three years of imprisonment with prison labor, four years of suspended execution, and 200 hours of imprisonment) is too heavy.

Shebly Defendant 2 (U.S. Unfair Claims)

In light of the fact that the defendant's depth is against, the punishment of the court below (the probation of one year and six months for imprisonment, three years for the suspension of execution, and 160 hours for the community service order) is too heavy.

(b) An inspection;

In light of the nature of the instant crime, etc., the sentence of the lower court against the Defendants is too minor.

2. Judgment on the mistake of facts or misapprehension of legal principles by Defendant 1

A. Whether the defendant is the principal agent of the crime of occupational embezzlement (as to the argument item (a) of the defendant)

(1) The judgment of the court below

The Defendant also argued to the effect similar to this part of the grounds for appeal, and the lower court rejected the Defendant’s argument on the ground that the subject of embezzlement is the person who keeps another’s property by consignment relationship and is in de facto relationship with the consignment relationship. The Defendant, as the chief director of the Nonindicted School Foundation 1, exercised direct and indirect influence over the operation of the ○ University and the Industry-Academic Cooperation Foundation, and was in de facto custodian’s status, such as ordering the principal director of the ○ University and the ○ University and the Industry-Academic Cooperation Foundation to deposit money.

She The Judgment of the Court

In light of the records, a thorough examination of the evidence of this case reveals that the court below did not err by misapprehending the legal principles or violating the rules of evidence in the process of determining that the defendant may be the principal agent of the crime of occupational embezzlement based on the above legal principles and evidence judgment, and that according to the evidence duly adopted and investigated by the court below and the court below, the following circumstances acknowledged: ① school expenses, such as the money loaned by the ○○ University University School Education Fund and the industry-academic cooperation foundation as collateral, and the money deposited as a bridge or a modified object of the instant industry-academic cooperation fund, are directly opened by the defendant or directly withdrawn money from the said account; ② the defendant kept the instant industry-academic cooperation fund in fact after being entrusted by the industry-academic cooperation foundation, and led the defendant to commit the crime of arbitrarily using it in collusion with Nonindicted 7 and 8, who is the person in charge of the accounting management, so long as the defendant was the principal agent of the crime of occupational embezzlement and the crime of violating the Act of the Budgeting and Management of Subsidies and Management, the defendant's allegation in this part or misapprehension of legal principles can be accepted.

B. Determination under Section 1-A (b) of the facts constituting the crime in the judgment below [as to Section 1-A (b) of the defendant]

(1) The judgment of the court below

In the lower court’s assertion as to the assertion of Defendant 1 and his defense counsel, the lower court rejected the Defendant’s establishment registration after receiving the payment of KRW 175 million in its name on September 27, 2005 and KRW 80 million in total, and KRW 250 million in total, on the grounds that, under the title of “decision on the argument of Defendant 1 and his defense counsel,” the revenues belonging to the accounts of private schools are strictly limited to that of other accounts, and thus, if the funds for school expenses are used for any other purpose, such as the transfer or lending of revenues from the accounts of private schools to the other accounts, the crime of embezzlement is established. In so doing, the lower court rejected the Defendant’s allegation that the said funds were not transferred to the Defendant’s defense counsel at the same time as the above 200 million capital was transferred to the Defendant’s limited liability company, and that the said funds were not transferred to the Defendant’s limited liability company and KRW 250 million in total at the same time as the date of the establishment registration of the Defendant’s limited liability company.

She The Judgment of the Court

A thorough examination of the evidence of this case reveals that the court below did not err by misapprehending the legal principles or violating the rules of evidence in the process of rejecting the defendant's assertion based on the above legal principles and evidence judgment. The following circumstances acknowledged by the court below and the court below legitimately adopted the evidence, namely, ① the money loaned to ○○ University as collateral, was deposited into the capital account of the non-indicted 2 limited company, and continued to exist until the repayment of ○ University loans. ② The defendant need to establish a dynamic construction for the same type of business by rapidly changing funds due to the bankruptcy of the non-indicted 6 corporation, ③ the defendant did not have any defense that the non-indicted 2 acquired 40 million won from the non-indicted 6 limited liability company and the non-indicted 200,000,000 won from the non-indicted 6 corporation to the non-indicted 20,000,000 won from the non-indicted 6 corporation to the non-indicted 2 corporation and the non-indicted 2 corporation 60,000,06.

C. Judgment of the court below on the Doz. of the crime No. 1-A of the judgment of the court below

(1) The judgment of the court below

The Defendant also asserted as the grounds for appeal in the lower court, and the lower court rejected the Defendant’s assertion on the ground that the crime of occupational embezzlement is established as long as the Defendant deposited KRW 245 million in the school expense account for corrective measures in accordance with the matters pointed out by the Ministry of Education and Human Resources Development, even though the Defendant’s assertion was based on the title “determination of Defendant 1 and his/her defense counsel’s assertion” under the title “as to the assertion of Defendant 1 and his/her defense counsel,” insofar as the Defendant deposited KRW 25 million in the school expense account for corrective measures in accordance with the matters

She The Judgment of the Court

In light of the records, a thorough examination of the evidence of this case reveals that the court below did not err by misapprehending the legal principles or violating the rules of evidence in the process of rejecting the defendant's assertion based on the above legal principles and evidence judgment, and that is, as long as the defendant deposited money in the school expenses accounts to correct the matters pointed out in the audit by the Ministry of Education and Human Resources Development according to his own decision, the defendant cannot request the ○ University to return the money again, apart from claiming the amount of the money to the ○ University. ② The defendant did not express his opinion that it is subject to the conditions of the Ministry of Education and Human Resources Development in the course of depositing the money into the school expenses accounts. ③ The defendant's opinion does not necessarily mean that the matters pointed out are ultimately attributed to school expenses accounts. ③ The defendant did not arbitrarily account by clarifying that the defendant committed the act of paying the money to the employees who committed the violation in the process of withdrawing it again, and the defendant did not withdraw the money from the ○○ college to the 500 billion won or 1400 billion won, and the defendant did not receive it.

라. 원심 판시 범죄사실 제1의 가. ⑶항에 관한 판단[피고인의 ㈃ 주장에 관하여]

(1) The judgment of the court below

In the lower court’s assertion as to this part of the grounds for appeal, and the lower court rejected the Defendant’s assertion on the following grounds: (a) under Article 32(1)3 of the Promotion of Industrial Education and Industry-Academic Cooperation Act, even if the Defendant deposited and used the money borrowed in the name of the industry-academic cooperation foundation in the form of a defendant’s provisional payment, the substance of the money was used for the ○○ University only for the Defendant’s ○ University; and (b) in light of the purpose of the Act on the Budgeting and Management of Subsidies, the ownership of the said national subsidy is reserved to the State until it was used for the original purpose as a strictly limited fund; and (c) Article 32(1)3 of the Promotion of Industrial Education and Industry-Academic Cooperation Act provides that the funds of the Industrial Cooperation Foundation may be disbursed as the “expenses for the establishment and operation of the university,” but this is merely a mere fact that the funds

She The Judgment of the Court

In light of the records, a thorough examination of the evidence of this case reveals that the court below did not err in the misapprehension of legal principles or violation of the rules of evidence in the process of rejecting the defendant's assertion based on the above legal principles and the determination of evidence, and that the government subsidy paid to the industry-academic cooperation foundation is specified in its use. The defendant's assertion can be used for other purposes regardless of the intent of the recipient. In light of the defendant's assertion that the use of the designated government subsidy is strictly restricted, and that it is not applicable to the case where money is entrusted between private persons, as well as the government subsidy that is not applied to the case where money is entrusted between private persons, it can be sufficiently recognized that the defendant embezzled 30 million won of the fund of the industry-academic cooperation foundation as stated in the 1-A criminal facts of the court below.

마. 원심 판시 범죄사실 제1의 나.항에 관한 판단[피고인의 ㈄ 주장에 관하여]

(1) The judgment of the court below

The Defendant also asserted as the grounds for appeal in the lower court. The lower court rejected the Defendant’s assertion on the following grounds: (a) under the title “judgment on the assertion of Defendant 1 and his defense counsel”; (b) the use of the funds withdrawn from the accounts for school expenses for purposes other than those prescribed in Article 13(2) of the Private School Act by itself; (c) the crime of embezzlement is established; (d) the Defendant did not use the total amount of KRW 1.4 billion deposited from ○ University for the repayment of loans granted in the name of the industry-academic cooperation foundation and the ○ University; and (e) Non-Indicted 15 Limited Company (the Defendant changed its trade name on March 27, 2006; hereinafter “Non-Indicted 15 Limited Company”) deposited into the account in the name of the ○ University; or (e) transferred the funds to the account in the name of the ○ University; and (e) it can be recognized that the funds were used for other purposes, such as those pointed out in the audit and inspection by the Ministry of Education of Human Resources.

She The Judgment of the Court

㈎ 원심이 피고인의 주장을 배척하면서 교비회계에서 인출된 자금을 사립학교법 제13조 제2항 소정의 용도가 아닌 다른 용도에 사용하는 것은 그 자체로써 횡령죄가 성립한다고 판시한 것은 적절하나, 한편 사립학교에서 원래 교비회계에 속하는 자금으로 지출할 수 있는 항목에 관한 차입금을 상환하기 위하여 교비를 지출한 경우, 그 행위자가 차입 및 지출 과정에서 사립학교법의 관련 규정을 제대로 준수하지 아니하였다면 이에 대하여 사립학교법에 따른 형사적 제재 등이 부과될 수 있을 뿐이고, 이러한 차입금 상환행위에 관하여 교비회계 자금을 임의로 횡령하고자 하는 불법영득의 의사가 있다고 보기 어렵다( 대법원 2006. 4. 28. 선고 2005도4085 판결 등 참조).

㈏ 돌이켜 이 사건에 관하여 보건대, 원심이 적법하게 채택하여 조사한 증거들에 의하면, 피고인이 원심 판시 범죄사실 제1의 나.항 기재와 같이 ○○대학의 교비 회계에서 인출한 돈을 피고인 명의의 계좌로 송금받은 사실은 인정된다. 그러나 피고인이 위와 같이 송금받은 돈 중 일부는 단순한 회계처리를 위한 입출금에 불과하고, 또한 그 일부는 이사장 가수금 형태로 ○○대학에게 교비회계 비용을 빌려주었다가 변제받거나 그 변제에 갈음하여 피고인이 운영하는 회사 등에 송금한 것에 불과하다는 취지로 주장하고 있는 이상, 앞서 본 법리에 따라, 피고인 명의의 계좌에 차입금의 상환과 무관하게 송금된 금액에서, 피고인이 교비회계 비용으로 ○○대학에 대여한 가수금채권과 정산하였다고 볼 수 있는 금액을 제외한 금액에 대하여만 횡령죄가 성립한다고 보아야 한다(피고인은 원심이 판시한 금액을 상회하는 가수금채권이 있었음에도 원심에서 피고인이 가수금을 가장하였다고 인정함으로써 사실을 오인하였다는 취지의 주장도 하고 있으나, 원심은 교비의 지출 경위를 설시하면서 피고인의 가수금채권이 가장된 바 있다고 판시하였을 뿐이고, 피고인 명의의 우체국 계좌로 송금한 행위에 대하여 업무상횡령죄로 인정하였으므로, 위에서 본 바와 같이 횡령액을 확정하면 족하다).

㈐ 이에 먼저 이 부분 공소사실과 같이 피고인 명의의 계좌에 송금된 교비 가운데 교비회계의 차입금 상환과 무관하게 송금된 금액에 관하여 본다.

(a) The fact that ○○ University’s tuition account was remitted from January 17, 2007 to the post office account under the name of the Defendant is recognized. However, the above account in the name of the Defendant was deposited from January 19, 2007 to the account in the name of Nonindicted Incorporated Foundation 1 on January 22, 2007, and except this, was used for the audit and cadastral refund, etc. of the Ministry of Education and Human Resources Development, which is unrelated to the remaining money’s tuition account, and the Defendant asserts that 25.5 million won was erroneously withdrawn and returned, it constitutes the money remitted from January 17, 2007 to the Defendant’s account regardless of the repayment of the loan.

(b) From the school expense accounts of ○○ University, KRW 200 million was remitted to the post office accounts under the name of the defendant on January 24, 2007, and on the same day, KRW 20 million was withdrawn from the above accounts under the name of the defendant, and KRW 15 million was remitted on January 25, 2007 to the non-indicted 15 limited liability company, an affiliate operated by the defendant, and there was no submission to support that the non-indicted 15 limited liability company lent the school expense accounts to ○ University. Thus, the remittance amount of KRW 200 million as of January 24, 2007 constitutes money remitted to the defendant’s account regardless of the repayment of the ○ University loan.

C. The C.C. 200 million won was transferred from the accounts of ○○ University to the Agricultural Cooperative under the name of the Defendant on February 1, 2007, and again, the fact that the Defendant was offered to repay the loan on December 15, 2006, which was given a loan as security by the Industry-Academic Cooperation Foundation Fund stated in the judgment of the court below. However, as long as the above loan was used as the accounts of ○○ University as seen in the above paragraph (d) above, it is difficult to conclude that the above KRW 200 million was a repayment of unjust enrichment related to the repayment of the loan or the accounts of school expenses, and there is insufficient evidence to conclude that this portion was remitted to the account under the name of the Defendant regardless of the repayment of the loan, and thus, it cannot be deemed that the remitted amount was remitted to the Defendant’s account regardless of the repayment of the loan (the criminal facts of Defendant 1 stated in the judgment of the court below). However, as long as it did not constitute an act of ex post facto acquisition, it cannot be found to be punished.

㈃ ○○대학의 교비회계에서 2007. 2. 16. 3억 원이 피고인 명의의 농협 계좌로 송금되었다가 공소외 17에게 그 전액이 송금된 사실이 인정되고, 공소외 17이 교비회계 비용을 대여하였다고 볼 만한 자료가 제출된 바도 없으므로, 2007. 2. 16.자 송금액 3억 원 전액이 일응 차입금의 상환과 무관하게 피고인의 계좌로 송금된 돈에 해당한다.

㈄ ○○대학의 교비회계에서 2007. 2. 27. 7억 원이 피고인의 농협계좌로 송금되었고 그 가운데 5억 원이 2007. 2. 28. 교비회계와 무관한 교육인적자원부의 감사지적사항 환급금 명목으로 ○○대학 농협계좌에 입금된 사실이 인정되므로, 위 5억 원은 일응 차입금의 상환과 무관하게 피고인의 계좌로 송금된 돈에 해당한다(검사는, 피고인이 자신의 계좌로 송금된 돈을 가수금채권의 발생일 순으로 상계처리했다고 주장하고 있는데, 피고인이 2007. 1. 8. ○○대학의 정식 교비계좌에 2억 원을 입금하여 가수금채권을 가지고 있다는 사실이 확인되었다는 이유로, 2007. 2. 27.자 송금액 7억 원 가운데 교육인적자원부의 감사지적사항 환급금 명목으로 사용되지 아니한 2억 원은 피고인의 위 가수금채권과 정산되었다고 보아 5억 원에 대하여만 기소하였다).

㈅ 위 ㈀ 내지 ㈄의 사실을 종합하면, ○○대학의 교비회계에서 피고인 명의의 계좌로 송금된 돈 가운데 차입금의 상환과 무관한 금액은 일응 11억 7,450만 원[= ㈀ 1억 7,450만 원 + ㈁ 2억 원 + ㈃ 3억 원 + ㈄ 5억 원]이다.

㈑ 다음으로, 피고인의 ○○대학 교비회계에 관한 가수금채권으로서 횡령액에서 공제할 금액을 가리기 위해 피고인이 주장하는 가수금채권을 개별적으로 본다.

(a) The Defendant asserts that, on October 12, 2006, KRW 120 million, KRW 20 million on December 8, 2006, KRW 50 million on December 11, 2006, KRW 00 million should be deducted from the amount of embezzlement because he deposited into ○ University account on December 11, 2006, and that the same amount should be deducted from the amount of embezzlement: (i) it is apparent that the Defendant deposits KRW 370 million in the ○ University account as alleged, and there is insufficient evidence to conclude that the source of the deposited money is 00 million, and (ii) it is insufficient to conclude that the said account was 10 million from the person other than the Defendant such as ○ University’s school tuition account, but it appears that the employee in charge of accounting was using the above account for the school tuition account, and (iii) it is difficult to readily conclude that the Defendant’s act was 100 million out of the total amount of money deposited into ○ University account with the same reasons as the Defendant’s temporary deposit account.

(b) In addition, the defendant asserts that the same amount should be deducted from embezzlement because he deposited 69 million won in the account of ○○ University on December 19, 2006. Thus, it is difficult to reject the defendant's assertion that 69 million won has been available for the same reason as stated in item (a). However, according to the evidence duly adopted and examined by the court below, the remaining KRW 100 million is the money withdrawn from the account of loans in the name of ○○ University as stated in the judgment of the court below and remitted to the account of ○○○ University. Since ○○○ University cannot be included in the amount of the defendant's deposits in the course of business to be deducted from embezzlement [ even if the defendant's money that is not the ○○ University's funds was treated as the defendant's funds, it is not clear that ○○ University's funds could not be accounted for by a method other than the name of the president and ○ University's funds deposited in the name of ○○ University without any justifiable ground.

On the other hand, the Defendant asserted that ① on December 15, 2006, ② KRW 400 million on December 29, 2006, ③ deposit of KRW 600 million on January 17, 2007 into ○ University account, and such amount should be deducted from the amount of embezzlement. In full view of the evidence duly adopted and examined by the court below, the Defendant’s source of funds for funds for funds for funds for funds borrowed from the account under the name of the industry-academic cooperation foundation as stated in the judgment of the court below in order. The amount deposited from the account under the name of the industry-academic cooperation foundation, as stated in the written in the written in the written in the written in the written in the written in ar), the amount loaned as security on December 29, 2006, ② KRW 400 million on December 29, 2006, and KRW 600 on January 17, 2007, it can not be acknowledged as including the amount of the Defendant’s lawful amount of funds embezzled.

㈃ 마지막으로, 피고인은 2007. 1. 8. 2억 원을 ○○대학의 계좌에 입금하였으므로 같은 금액이 횡령액에서 공제되어야 한다는 취지의 주장도 하고 있으나, 이 부분 입금액은 위 ㈐의 ㈄항 기재와 같이 검사가 처음부터 공소사실에서 제외한 부분에 해당하므로 횡령액에서 추가로 공제할 피고인의 가수금채권액에 포함할 수 없다.

㈄ 위 ㈀ 내지 ㈃의 사정을 종합하면, 피고인이 이 부분 공소사실 무렵 ○○대학에 대하여 4억 3,900만 원[= ㈀ 3억 7,000만 원 + ㈁ 6,900만 원]의 정당한 가수금채권이 있었다는 주장을 배척할 만한 증거가 부족하다(한편, 피고인은 항소이유서 제출기간 이후에 2009. 8. 11.자 변호인 의견서를 통해서 정당한 가수금채권으로 인정될 수 없는 금액은 ○○대학이 피고인에게 대여한 가지급금에 해당하는데 회계처리를 제대로 하지 못한 것에 불과하다고 주장하나, 업무상횡령죄를 저지른 이후에 그 횡령금은 가지급금에 해당하는 것으로 보아야 한다는 취지에 불과하여 받아들일 수 없다).

㈒ 따라서 위 ㈎ 내지 ㈑에서 본 바와 같이, 피고인이 ○○대학의 교비회계에서 차입금의 상환과 무관하게 일응 11억 7,450만 원을 피고인의 계좌로 송금한 사실은 인정되나, 그 무렵 피고인이 ○○대학의 교비회계에 대하여 4억 3,900만 원의 정당한 가수금채권이 있었으므로 그 송금액 가운데 위 가수금채권액 상당은 횡령액에서 공제하여야 한다는 피고인의 주장을 배척할 증거가 부족하므로, 결국 이 부분 공소사실 가운데 피고인은 7억 3,550만 원(= 11억 7,450만 원 - 4억 3,900만 원)을 횡령하였다는 부분은 이를 넉넉히 인정할 수 있고, 이를 상회하는 부분은 범죄의 증명이 없다고 할 것인바, 유죄로 인정되는 금액을 상회하는 부분에 관한 피고인의 사실오인 내지 법리오해 주장은 정당하고, 위 7억 3,550만 원 역시 횡령한 것이 아니라는 피고인의 사실오인 내지 법리오해 주장은 받아들일 수 없다.

바. 원심 판시 범죄사실 제2의 가., 나.항에 관한 판단[피고인의 ㈅ 주장에 관하여]

(1) The judgment of the court below

In light of the reasoning of appeal, the lower court also held that: (a) under the title of “decision on the assertion of Defendant 1 and his defense counsel”; (b) the Defendant deposited the amount equivalent to the purchase price of the instant land into the accounts of ○○ University; (c) concluded a contract to sell the instant land to Nonindicted 4 for the reason that it is necessary to dispose of the instant land in preparation for the notice of the intended disposal of heavy taxation at the Gwangju Mine Office or the audit of the Ministry of Education and Human Resources Development; (d) the full amount of the purchase price was deposited in the ○○ University; and (c) the Defendant’s sales contract between Nonindicted 4 and the Defendant’s limited liability company 16 on April 7, 2006, which was not the sale price for the instant land; and (d) the Defendant did not receive KRW 50 million from the ○○ University on the grounds that it was no longer the sale price for the instant land, and (e) the Defendant did not receive KRW 150 million from the ○ University on the grounds that it was no more than 500 billion.

She The Judgment of the Court

In light of the records, a thorough examination of the evidence of this case reveals that there was no reason to believe that the Defendant violated the rules of evidence in the process of rejecting the Defendant’s assertion based on the above determination of evidence. The following circumstances acknowledged by the lower court and the first instance court’s duly adopted and examined: ① Even if Nonindicted 4 entered into a sales contract with ○ University, insofar as the Defendant was involved in the process of concluding a sales contract between Nonindicted 4 and Nonindicted 6’s private company, not only the employees of Nonindicted 1 educational foundation but also employees of Nonindicted 16 limited companies operated by Nonindicted 4 but also the Defendant’s private company, which was recorded in the 60 billion won after the conclusion of the sales contract with 40 million won, the Defendant’s right to finally dispose of the land of this case by securing a final purchaser of the land after the conclusion of the sales contract with 00 million won, the Defendant lost his right to dispose of the land of this case immediately after the conclusion of the sales contract with ○○ University, and the Defendant appears to have been recorded in the 2000 million educational Center.

사. 원심 판시 범죄사실 제2의 다.항에 관한 판단[피고인의 ㈆ 주장에 관하여]

(1) The judgment of the court below

The Defendant also asserted as the grounds for appeal in the lower court, and the lower court rejected the Defendant’s above assertion on the following grounds: (a) under the title “Judgment on the Defendant 1 and his defense counsel’s assertion”; (b) the Defendant lent the amount to the industry-academic cooperation foundation around 2005; and (c) the money was used as the preparation expenses for the specialization project of the industry-academic cooperation foundation; (d) the Defendant’s lending money in around 2005 was disbursed as the preparation expenses to be designated as the specialized project university in the year 2006, the next year; (b) while the Defendant’s lending money in the year 2006, as the limited amount of use, should be used only for the specialization project in the year 2005, and it cannot be used as the expense for the designation

She The Judgment of the Court

On the other hand, the Industrial Cooperation Fund of this case was created only with the government subsidy for the specialization project as properly explained by the court below. According to the evidence duly adopted and examined by the court below and the court below, ① the defendant opened a regular deposit account in the name of non-indicted 7, and used it as collateral to transfer it to non-indicted 20 or 21 or exchange it into US dollars. In light of the fact that the defendant's 20 or 21 was used regardless of the relationship with the industry-academic cooperation foundation and the fact that the money in this part of the facts charged was not appropriated for 00 million won, ② the defendant argued that the defendant was paid 460 million won or more to the industry-academic cooperation foundation for 2006 specialization project, but the defendant did not have received the above funds for 00 million won or more from 200 million won for the purpose of preparing for the above 200 million won or more as evidence of the fact that 200 million won or more was not presented.

아. 원심 판시 범죄사실 제3항에 관한 판단[피고인의 ㈇ 주장에 관하여]

(1) The judgment of the court below

In the lower court’s argument that this part of the grounds for appeal was the same, and the lower court rejected the Defendant’s assertion that, on August 9, 2005, the Defendant opened an account in the name of Nonindicted 22 by requesting the opening of an account with Nonindicted 22 upon requesting the opening of an account to Nonindicted 32, and that, (a) around April 8, 2005, the Defendant provided the government subsidy of the industry-academic cooperation foundation as collateral and brought about KRW 460 million borrowed in the name of Nonindicted 7, and (b) provided the Defendant to Co-Defendant 2 for the settlement of this money from the specialization project cost; (c) on August 2005, the Defendant requested the opening of the account to Nonindicted 22; and (b) opened the account in the name of Nonindicted 5 under the name of the Industry-academic cooperation foundation from around August 9, 2005 to the account in the name of the industry-academic cooperation foundation; and (c) the Defendant’s assertion that the funds were directly used by Nonindicted 28, etc.

She The Judgment of the Court

In light of the records, a thorough examination of the evidence of this case reveals that the court below did not have any circumstance to deem that there was an error in the legal principles or a violation of the rules of evidence in the process of rejecting the defendant's assertion based on the above determination of evidence, and the following circumstances acknowledged by the court below and the court of first instance as follows; ① the defendant was directly involved in the use of the funds created at will as above; ② the use of the funds was private use of Nonindicted 8, the president of the industry-academic cooperation foundation; and ② the repayment of the funds borrowed on July 8, 2005, the president of the industry-academic cooperation foundation [the above funds were used for the loans borrowed on April 8, 2005, the above funds were used for the loans borrowed by the defendant as stated in Article 2-3(c) of the facts constituting the crime in the judgment of the court below, and there was no error of the legal principles as to the defendant's non-indicted 2's non-indicted 3's embezzlement or embezzlement as stated in the judgment of the court below.

3. Determination on the Defendants and the Prosecutor’s assertion of unreasonable sentencing

A. Defendant 1

The crime of this case is very important in light of the fact that the defendant, as the chief director of the non-indicted 1 school foundation, used the government subsidy of the ○○ University and the foundation for industry-academic cooperation in collusion with its employees at will as money stored in the private treasury, and the amount of embezzlement is not much significant.

However, the defendant accepted a school juristic person in lieu of the contract price, and contributed considerable money and real estate, and the amount equivalent to the money embezzled by the defendant is merely a temporary useful or legal embezzlement. It is difficult to conclude that the defendant acquired a large amount of economic benefits as the grounds for appeal by the prosecutor. The defendant deposited the school juristic person 1 or ○ University as the principal deposit in the court below to recover damage, and the defendant would settle the amount equivalent to KRW 1.642 million of the claim for the amount of the deposit, and above all, if the damage falls short of the compensation, it is difficult for the defendant to perform the community service ordered by the court below because he is under intensive treatment due to the prolongedness of the evidence, and it is difficult for the court below to perform the social service, and all other circumstances, which are the conditions for sentencing as indicated in the records of this case, such as the defendant's age, character and behavior, family environment, etc. Thus, the defendant's assertion pointing this out is justifiable and is not acceptable.

B. Defendant 2

The crime of this case is committed by the defendant as the head of the secretariat of the ○○ University, and the defendant exercised considerable influence over the operation of the school foundation 1 or ○○ University, and the co-defendant 1 actively participated in and planned and implemented the crime. The crime of this case is very serious in light of the fact that the amount of embezzlement is not significant.

However, it seems that the defendant has committed the crime of this case because it is difficult to do an act contrary to the direction of co-defendant 1, who has exercised a strong influence as the president of the non-indicted 1 school foundation, as the defendant is the founder of the ○ University and the defendant appears to have committed the crime of this case. The defendant has little economic benefits acquired individually. Above all, the defendant also has difficulty in performing community service ordered by the court below due to traffic accident after the aftermath of traffic accident, and all other circumstances, such as the defendant's age, ordinary character and behavior, family environment, etc., which are the conditions for sentencing as stated in the records of this case, are considered to be excessive. Thus, the defendant's argument pointing this out is justified

4. Conclusion

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

The criminal facts against the Defendants recognized by this court and the summary of the evidence thereof are as follows, and some criminal facts are modified as stated in the corresponding column of the judgment of the court below except for adding evidence, such as Paragraph 5, and as stated in Article 369 of the Criminal Procedure Act, they are cited as it is.

1. Of the crimes No. 1-A. 1-3 of the facts constituting the crime in the judgment below, the school expenses of the victim ○ University shall be replaced by “the school expenses of the victim ○ University or the funds of the foundation for industry-academic cooperation for the victim ○ University”.

2. Article 1-1-A of the criminal facts stated in the judgment below. Since it is apparent that "245 million won" in five parallels in the judgment below is a clerical error, it shall be replaced by "245 million won".

3. Of the facts constituting the crime of paragraph (2) of the judgment below, the “the above university school expenses and the funds for Nonindicted Foundation 1” was replaced by “the school expenses for the above university and the funds for Nonindicted Foundation 1 and the funds for the victim ○○ University Foundation Foundation.”

4. Of the facts stated in the judgment of the court below, 8 to 16. 2. 7 billion won in the above 2. 7 billion won in the account under the name of 30 billion won in the name of 200 million won in the above 2. 7 billion won in the account of 200 million won in the name of 30 million won in the above 2. 7 billion won in the account of 200 million won in the name of 200 million won in the above 2. 7 billion won in the name of 200 million won in the above 2. 7 billion won in the account of 200 million won in the name of 200 million won in the above 3. 7 billion won in the account of 200 million won in the name of 200 million won in the above 3. 7 billion won in the account of 3 billion won in the account of 200 million won in the name of 200 million won in the above 3. 7 billion won in the account of 2000 billion won in the above 3. 3 billion won in the above account.

5. On the summary of the evidence in the holding of the court below, the phrase “Defendant 2’s statement at the court of first instance” is added.

1. Article relevant to the facts constituting an offense and the selection of punishment;

- Defendant 1: Article 3 (1) 2 of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes, Articles 356 and 355 (1) of the Criminal Act [the point of business embezzlement under Article 1-A], Articles 356 and 355 (1) of the Criminal Act [the point of business embezzlement under Article 1-A], 356 and 355 (1) of the Criminal Act [the point of business embezzlement under Article 1-A of the crime at the time of the sale], comprehensively, Article 3 (1) 2 of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes, Articles 356 and 355 (1) of the Criminal Act [the point of business embezzlement under Article 1-B of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes at the time of the sale], comprehensively, Article 3 (1) 2 of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes, Article 356, Article 30 (1) of the Criminal Act

- Defendant 2: Each inclusive, Article 3(1)2 of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes, Articles 356, 355(1) of the Criminal Act, Article 30 of the Criminal Act (the crime No. 2-A, 355(1) of the Criminal Act), Articles 356 and 355(1) of the Criminal Act, Article 30 of the Criminal Act (the crime No. 2-b and (c) of the Criminal Act, Article 30 of the Criminal Act (the crime No. 2-b and (c) of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes) (the use of subsidies for any purpose other than the use of subsidies)

1. Formal concurrence (defendants);

Articles 40 and 50 of each Criminal Act (Article 40 and 50 of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Embezzlement) with respect to Defendant 1, punishment provided for in the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Embezzlement) and the Act on the Budgeting and Management of Subsidies with heavy punishment between the crimes under paragraph (3) of the same Article and the crimes of violation of the Act on the Budgeting and Management of Subsidies shall be

1. Selection of a sentence;

Imprisonment with labor for each crime of occupational embezzlement

1. Aggravation of concurrent crimes;

Article 37 (former part), Article 38 (1) 2, and Article 50 of the Criminal Code

1. Discretionary mitigation;

Articles 53 and 55 (1) 3 of the Criminal Code (As regards the conditions in favor of the preceding)

1. Suspension of execution (the defendants);

Article 62(1) of each Criminal Code (As mentioned above, repeated normal consideration)

Of the facts charged in this case against Defendant 1, the defendant was found not guilty of KRW 200 million on December 15, 2006; KRW 200 million on the account under the name of 30 billion on the account of 20 billion on the account of 200 million on the account of 20 billion on the account of 200 million on the account of 20 billion on the above 70 billion won on the account of 200 million on the account of 200 million on the account of 200 million on the above 70 billion on the account of 30 billion on the account of 200 million on the account of 200 million on the account of 200 million on the account of 7 billion on the account of 3 billion on the account of 3 billion on the above 200 billion on the account of 200 million on the account of 1 billion on the account of 200 million on the account of 3 billion on the account of 200 on the account of the above 120.7 billion on the account of the defendant.

Judges Suhovah (Presiding Judge) and Yang-heeh