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

[2] The degree of proof necessary for embezzlement

[3] The case reversing the judgment of the court below on the ground that withdrawing the fund of the Incorporated Foundation and depositing and keeping it in a financial institution under the name of the chief director and director of the Incorporated Foundation constitutes embezzlement

[1] The intention of unlawful acquisition in the crime of occupational embezzlement refers to the intention of disposing of another person's property, which is in violation of his/her occupational duty, such as in fact or in law, for the purpose of seeking the benefit of himself/herself or a third party.

[2] The fact that there is an act of embezzlement as an act of realizing an intent to acquire unlawful acquisition requires a prosecutor to prove the existence of such an act. The proof ought to be based on strict evidence with probative value, which causes a judge to have no reasonable doubt. If there is no such evidence, even if there is no doubt as to the defendant's guilt, it is inevitable to determine it as the defendant's interest.

[3] The case reversing the judgment of the court below on the ground that withdrawing the fund of the Incorporated Foundation and depositing and keeping it in a financial institution under the name of the chief director of the Incorporated Foundation and the directors constitutes embezzlement

[1] Article 356 of the Criminal Code / [2] Article 356 of the Criminal Code, Articles 307 and 308 of the Criminal Procedure Act / [3] Article 356 of the Criminal Code, Article 308 of the Criminal Procedure Act

[1] Supreme Court Decision 85Do2212 delivered on July 8, 1986 (Gong1986, 1139), Supreme Court Decision 85Do2698 delivered on October 14, 1986 (Gong1986, 3058), Supreme Court Decision 87Do1901 delivered on October 10, 1989 (Gong1989, 1705), Supreme Court Decision 94Do2911 delivered on February 10, 1995 (Gong195, 1368) / [2] Supreme Court Decision 94Do998 delivered on September 9, 1994 (Gong194, 2679)

Defendant 1 and one other

Defendants

Attorney Lee Jong-sung et al.

Seoul High Court Decision 92No1145, 94No1957 delivered on July 8, 1997

All the judgment below is reversed, and the case is remanded to Seoul High Court.

Each of the grounds of appeal by the Defendants’ national and private defense counsel are examined together.

1. As to the defendants' violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Occupational Embezzlement)

The summary of the facts charged as to this point is as follows: Defendant 1 is the chief director of Nonindicted Incorporated Foundation (hereinafter “Foundation”); Defendant 2 was engaged in the fund management business of the Foundation with the audit of the Foundation; Defendant 2 was a person who was engaged in the fund management business of the Foundation; in collusion with the intent to take back by withdrawing the revenue, such as the cost of processing the graveyard sale; and on January 24, 1990, the office of the 10th floor of the 10th floor of the Chungcheongnam-dong, Gangnam-gu, Gangnam-gu, Seoul, the 620,000 won was paid to YY-dong Co., Ltd. at the office of the 10th floor of the 10th floor of the 10th floor of the Chungcheongnam-dong, Gangnam-gu, Seoul, Seoul, with a false tax invoice issued by the said Company and kept the amount of KRW 94,620,000 from the revenue of the Foundation, and deposited the amount of KRW 94,620,000 won,00.

The court below held that even if the above withdrawal of the Fund of the Foundation was decided by the board of directors of the Foundation without the resolution of the board of directors, the Defendants did not receive a false tax invoice from the above business partners, such as the Foundation, Kim Young-hee, Kim Tae-ho, etc., and made it possible to prepare a disbursement resolution and accounting books, and that the funds were paid from the Foundation to the business partners, and that only the amount calculated on the basis of the excessive disbursement was paid as corporate tax in 1989, and that Defendant 1 did not clearly receive the notification of the withdrawal of the Fund from the former president Kim Jong-Un and received the notification of the withdrawal of the Fund and received the notification of the funds from the above business partners on November 12, 1990, the Defendants did not know of the remaining amount of value-added tax that was paid to the above business partners, and that the above withdrawal was not made within the scope of 1,659,684 won and the aggregate amount of corporate tax in 1989,934,70 of the Foundation's money to be withdrawned under the above evidence.

However, the intent of unlawful acquisition in the crime of occupational embezzlement refers to the intent to dispose of another person's property in violation of his/her duties for the purpose of pursuing his/her own or a third party's interest, such as in fact or in law (see Supreme Court Decision 94Do2911, Feb. 10, 1995). The prosecutor must prove that there is embezzlement as an act of realizing an intent to acquire unlawful acquisition. The proof should be based on strict evidence with probative value that makes a judge not have any reasonable doubt, and if there is no such evidence, even if there is suspicion of guilt against the defendant, it shall be determined as the defendant's interest (see Supreme Court Decision 94Do998, Sept. 9, 1994). In this case, Defendant 1 appears to have managed the above withdrawn money in the name of himself/herself and the director's name, even if it was not deposited for the whole period, and thus, Defendant 1 should not have the intent to withdraw the money from the above foundation's funds.

However, according to the court below's decision based on its findings, even if Defendant 1 did not know of the situation in which other executives or accounting officers of the Foundation were in charge of the fund management of the Foundation, if it is the chief director of the Foundation who was in charge of the fund management of the Foundation, and if it is not proved otherwise that the fund management of the Foundation was made by illegal acquisition intent for the chief director itself, it is sufficient to deem that the fund is still under the management of the Foundation. Thus, it cannot be concluded that the above fund was out of the scope of the management of the Foundation. Further, it cannot be said that the fund withdrawal was made out of the scope of the Foundation's management, and that there was no resolution of the board of directors or it was included in the purpose of tax evasion, etc., but it is difficult to consider that the Defendants

However, despite the assertion that Defendant 1 kept the withdrawn money as funds of the Foundation, the fact that Defendant 1 clearly failed to disclose the distribution process and distributed storage details of the withdrawal money can be suspected of not being dealt with as his own possession. However, in light of the materials and records submitted by the Defendants, first of all, the date of the crime in this case was committed on January 24, 1990, immediately after Defendant 1 was entrusted with the operation of the Foundation, until October 31, 1990, which was 12 days after the receipt of an objection to withdrawal of funds from the above Kim Jong-Un, and the full amount of the withdrawal money was paid to the Foundation after 12 days from the date, it is difficult for the court below to readily conclude that Defendant 1’s unlawful acquisition of the funds was not carried out by the Foundation, and that Defendant 1’s withdrawal of the funds was not carried out for the purpose of personal consumption, including that of the Foundation’s original owner, and that it was not carried out for the purpose of the Foundation’s new withdrawal of funds.

In the end, the court below found the above facts charged as to occupational embezzlement in accordance with the evidence in its holding that there is an error of law by misunderstanding the facts against the rules of evidence or by misapprehending the legal principles as to the intent of unlawful acquisition in the crime of occupational embezzlement, which affected the conclusion of the judgment. Therefore, the argument that points this

2. As to Defendant 2’s occupational breach of trust

Examining the adopted evidence of the court of first instance cited by the court below in light of the records, since it can be sufficiently recognized that the defendant has committed a crime of occupational breach of trust in the judgment of the court of first instance, by employing unreliabilityless evidence, such as the theory of lawsuit, and by recognizing the facts against the rules of evidence, it cannot be said that there was an error of law that erred in the misapprehension of the rules of evidence.

In light of the records, this case's complaint was filed with the Daejeon District Prosecutors' Office having jurisdiction over the location of the principal office of the foundation, and the delivery of the goods of this case and the astronomical area where the removal was performed by the Corporation. In addition, there was no data to deem that the investigation procedure was illegally conducted, such as the theory of lawsuit, on the records, it cannot be accepted that the evidence of the court below employed by the court below constitutes illegally collected evidence and thus, it cannot be accepted that the evidence of this case is inadmissible. All arguments on this part are without merit.

Therefore, the part of the judgment of the court below which found the defendants guilty of violating the Act on the Aggravated Punishment, etc. of Specific Economic Crimes against the defendants shall be reversed, and since the above crime and the crime of occupational breach of trust against the defendants 2 constitute concurrent crimes under the former part of Article 37 of the Criminal Act, one sentence is reversed, and the judgment of the court below shall be reversed and the case shall be remanded to the court below.

Justices Chocheon-sung (Presiding Justice)