[edit] Supreme Court Full Bench Decision 2002Do669 delivered on July 18, 2002 [Violation of the Act on Aggravated Punishment, etc. of Specific Economic Crimes (Embezzlement)·Forgery of Private Document, Uttering of Forged Private Document, Occupational Embezzlement, Occupational Breach of Duty, Fraud, Violation of Act on Credit Union, Violation of the Act on Aggravated Punishment, etc. on Specific Economic Crimes(Fraud)]

【Main Issues】

[1] The criteria for distinguishing 'imaginary concurrence' and 'statutory concurrence' of crimes

[2] The number of crimes when a single act meets the elements of all the crimes of fraud, occupational embezzlement and ordinary embezzlement (='imaginary concurrence')

【Summary of Decision】

[1] 'Imaginary concurrence' occurs when a single conduct actually meets the elements of several crimes. 'Statutory concurrence' occurs when a single conduct seems to constitute several crimes but actually only constitutes one crime. Whether a conduct constitutes one crime or several crimes is to be decided by assessing the elements of each crime and considering the legal interests being protected.

[2] A crime of fraud consists of defrauding a person and taking movable property or obtaining pecuniary benefit. It does not involve the breach of one's duty and the concept of fraud cannot be said to include an act of breaching one's duty. A crime of 'occupational embezzlement' occurs when a person, who has a duty to administer another's business, breaches his duty and obtains, or lets a third person obtain, pecuniary benefit thereby causing loss to another. It does not include a defrauding element. Therefore, the two crimes are separate crimes with different elements and are classified in different chapters of the Criminal Code. When a single act meets the elements of both fraud and occupational embezzlement, it is appropriate to state that 'imaginary concurrence', not 'statutory concurrence', has occurred. 'Imaginary concurrence' has also occurred when a single act meets the element of both fraud and 'ordinary embezzlement', other than 'occupational embezzlement.'

【Reference Provisions】 [1] Article 40 of the Criminal Act / [2] Article 40, Article 347, Paragraph 2 of Article 355, Article 356 of the Criminal Act

Article 40 of the Criminal Act (Imaginary Concurrence) When a single act constitutes several crimes, punishment provided for the most serious crime shall be imposed.

Article 347 of the Criminal Act (Fraud) (1) A person who defrauds another, thereby taking movable property or obtaining pecuniary benefit from another, shall be punished by imprisonment for not more than ten years or by a fine not exceeding twenty million won.

(2) The preceding paragraph shall apply to a person who, by the methods of the preceding paragraph, causes a third person to take movable property or to obtain pecuniary benefit from the latter.

Article 355 of the Criminal Act (Embezzlement of movable property and benefit) (1) omitted

(2) The preceding paragraph shall apply to a person who, administering another's business, obtains pecuniary benefit or causes a third person to do so from another in breach of ones duty, thereby causing loss to such person.

Article 356 of the Criminal Act (Occupational Embezzlement of movable property and benefit) A person who commits the crime as prescribed in Article 355 in breach of trust and confidence of another, shall be punished by imprisonment for not more than ten years or by a fine not exceeding thirty million won.

【Reference Cases】 [1] Supreme Court Decision 84Do782 delivered on June 26, 1984 (Gong1984, 1381), Supreme Court Decision 97Do2956 delivered on March 24, 1998 (Gong 1998Sang, 1248), Supreme Court Decision 2000Do1899 delivered on July 7, 2000 (Gong2000Ha, 1911), Supreme Court Decision 2000Do5318 delivered on March 27, 2001 (Gong2001Sang, 1064) / [2] Supreme Court Decision 82Do1910 delivered on July 12, 1983 (Gong1983, 1216) (overruled)

【Defendant】 Defendant

【Appellants】 Defendant and Prosecutor

【Defense Counsel】 Attorney Yoo Hyo-bong

【Court of First Instance】Changwon District Court Judgment 2001GoHap84, 103, 155, 198 delivered on September 14, 2001

【Court of Second Instance】 Busan High Court Judgment 2001No819 delivered on January 23, 2002

【Disposition】 Among the court below's judgment, the guilty part and the part relating to the crime of occupational embezzlement in 2-Ra(3)(Na) and (3)(Ra), 9 through 18, 20 through 25 in the annexed crime chart of 2-Ma(3), 2-Sa(3) as in the judgment of the court of first instance shall be reversed and the corresponding part of this case shall be remanded. The rest of the prosecutor's appeal shall be dismissed.

【Reasoning】 1. With respect to the defendant's grounds for appeal

(1) Concerning the misjudgment of facts and law in violation of the rules of evidence or due to incomplete trial of the case

In light of records, reviewing the evidence legally admitted by the court below, we affirm the court's guilty judgment on each crime cited in the judgment, and there is neither misjudgment of facts nor of legal principles pertaining to the Credit Union Act caused by violation of the rules of evidence or incomplete trial.

The grounds for appeal pointing out this issue cannot be accepted.

(2) Concerning the issue of inappropriate sentencing

Where the defendant was sentenced to a 4 year imprisonment, the appeal that the sentencing was inappropriate does not constitute a legitimate ground for appeal.

2. With respect to the prosecution's grounds for appeal

(1) Concerning the misjudgment of facts in violation of the rules of evidence

According to the court below's opinion, the court held that defendant was not guilty regarding the counts of counterfeit or alteration of a private document and uttering of such document and each count of fraud and occupational embezzlement as of March 9, 1999 [(3) 2-8 of the annexed crime chart of 2-Ma as in the judgment of court of first instance] and the counts of counterfeit or alteration of private document and uttering of such document and fraud and occupational embezzlement as of February 21, 2000 [(3)-19 of the annexed crime chart of 2-Ma as in the judgment of court of first instance] because the existing evidence was not enough to support the charge. In light of the records, the court below's judgment is correct and there is no misjudgment of facts violating the rules of evidence or incomplete trial as argued in the appeal.

(2) Concerning the misunderstanding of the principle on 'imaginary concurrence'

Regarding each count of occupational embezzlement in 2-Ra-(3)(Na); (3)(Ra); 1, 9-18, 20-25 of the annexed crime chart of 2-Ma-(3); 2-Sa-(3), the court below held that, when the administrator of another's business, in breach of his duty, deceives a person and takes property from another, his conduct only constitutes fraud. It does not constitute the crime of embezzlement even if the elements of the crime of embezzlement are met. Therefore the court below maintained that each act of the defendant, who was an executive director of the Credit Union, defrauding the employee and taking money through the process of deposit withdrawal or loan, constitutes only fraud. Accordingly the court below reversed the trial court's judgment and found guilty only on the charges of fraud. Although the court found the charge of occupational embezzlement not guilty, it did not make that clear in its disposition because the charge of occupational embezzlement was statutorily concurrent with that of fraud which was found guilty.

However, 'Imaginary concurrence' occurs when a single conduct actually meets the elements of several crimes. 'Statutory concurrence' occurs when a single conduct seems to constitute several crimes but actually only constitutes one crime. Whether a conduct constitutes one crime or several crimes is to be decided by assessing the elements of each crime and considering the legal interests being protected. (See the Decision of July 7, 2000, Korean Supreme Court, 2000Do1899; the Decision of March 27, 2001, Korean Supreme Court, 2000Do5318.)

A crime of fraud consists of defrauding a person and taking movable property or obtaining pecuniary benefit. It does not involve the breach of one's duty and the concept of fraud cannot be said to include an act of breaching one's duty. A crime of 'occupational embezzlement' occurs when a person, who has a duty to administer another's business, breaches his duty and obtains, or lets a third person obtain, pecuniary benefit thereby causing loss to another. It does not include a defrauding element. Therefore, the two crimes are separate crimes with different elements and are classified in different chapters of the Criminal Code. When a single act meets the elements of both fraud and occupational embezzlement, it is appropriate to state that 'imaginary concurrence', not 'statutory concurrence', has occurred. 'Imaginary concurrence' has also occurred when a single act meets the element of both fraud and 'ordinary embezzlement', other than 'occupational embezzlement.'

This court's decision 82Do1910 delivered on July, 12 1983, which held that defendant's conduct met the elements of the crime of fraud, not the crime of the embezzlement with respect to the relation between fraud and embezzlement, shall be overruled to the extent that it conflicts with our opinion expressed in this judgment.

Accordingly, the court below's judgment which found guilty only for fraud and not guilty for occupational embezzlement on the ground that 'statutory concurrence' has occurred between each count of fraud and each count of occupational embezzlement erred on the rules on 'imaginary concurrence', which affected the conclusion of the judgment. Therefore the prosecution's appeal pointing out this issue is justified.

(3) Therefore, the part of court below's judgment relating to occupational embezzlement in B of its opinion and its guilty part which is 'imaginarily concurrent' or 'materially concurrent(as provided by article 37 of the Criminal Code)' should be reversed.

3. Conclusion

Therefore, the part of court below's judgment relating to occupational embezzlement in B of its opinion and its guilty part which is 'imaginarily concurrent' or 'materially concurrent(as provided by article 37 of the Criminal Code)' should be reversed and the corresponding part of this case shall be remanded to the court below for retrial and determination. The remaining appeal by the prosecution shall be dismissed. This decision is delivered with the assent of all the Justices who reviewed the appeal.

Chief Justice Choi Jong-young (Presiding Justice)

Justices Song Jin-hun

Suh Sung

Cho Moo-jeh

Byun Jae-seung

Yoo Ji-dam

Yoon Jae-sik (Justice in charge)

Lee Yong-woo

Bae Ki-won

Kang Shin-wook

Lee Kyu-hong

Son Ji-yol

Park Jae-yoon

This is a legal document in the public domain according to Korean Copyright Law.