CONTENTS
- 1. The Client Facing the Prospect of Punishment for Embezzlement
- - Standards and Requirements for Punishment for Embezzlement
- 2. Response Strategy for the Punishment-for-Embezzlement Issues
- - Proving the Absence of a Relationship of Entrustment
- - Demonstrating the Absence of Any Manifestation of Intent to Unlawfully Acquire
- - Pointing Out the Absence of Legal Effect of the Demand for Return
- 3. Successful Defense Against Punishment for Embezzlement and a Non-Prosecution Decision of “No Suspicion of Crime”
- - If You Need Professional Assistance?
1. The Client Facing the Prospect of Punishment for Embezzlement
The clients, who faced the prospect of punishment for embezzlement, had jointly won a hotel at auction, formally acquired ownership, and were operating the hotel normally.
However, the complainant, who had previously operated the hotel, demanded the return of fixtures remaining inside the hotel, such as a wall-mounted TV, an air conditioner, and a refrigerator, claiming that they were his own property. When the clients refused and continued to use them in their business, the complainant filed a criminal complaint seeking punishment for embezzlement.
In response, the clients consistently maintained that the fixtures had already been installed on-site at the time of the successful auction bid, and that they were not in any relationship of entrustment or custody with respect to those items.
Standards and Requirements for Punishment for Embezzlement
Embezzlement is a crime that is established when a person who has been keeping another person's property arbitrarily disposes of or uses that property as if it were his or her own.
In particular, if property kept in connection with one's duties is arbitrarily handled, the conduct may be punished more severely as “occupational embezzlement” rather than ordinary embezzlement.
For punishment for embezzlement to actually apply, the following elements of the crime must be satisfied.
For punishment for embezzlement to actually apply to the client in this case, it had to be proven that the above elements, in particular the relationship of custody and the intent to unlawfully acquire, were clearly satisfied.
However, through the assistance of the criminal law attorney, it was demonstrated that the client's conduct did not fall within those requirements, and as a result, it was possible to obtain a determination that the application of punishment for embezzlement was difficult.
Category | Explanation of the Requirement |
|---|---|
① Another Person's Property | The property must be owned by someone other than oneself. |
② Relationship of Custody | There must be a relationship of keeping and managing the property under an entrustment, contract, or the like, rather than mere possession. |
③ Intent to Unlawfully Acquire | There must be an intent to use the property as if it were one's own. |
④ Act of Embezzlement | There must be an actual act of disposal, such as arbitrary consumption or transfer to a third party. |
Punishment for embezzlement is based on Articles 355 and 356 of the Criminal Act, and the level of punishment is applied differently depending on the nature of the crime and the amount involved.
Ordinary Embezzlement (Article 355 of the Criminal Act) Imprisonment for up to 5 years or a fine of up to 15 million won
Occupational Embezzlement (Article 356 of the Criminal Act) Imprisonment for up to 10 years or a fine of up to 30 million won
Aggravated Punishment for Specific Economic Crimes
At least 500 million won but less than 5 billion won: Imprisonment for a definite term of at least 3 years5 billion won or more: Life imprisonment or imprisonment for at least 5 years
2. Response Strategy for the Punishment-for-Embezzlement Issues
In this case, where punishment for embezzlement was at issue, the criminal law attorney established a meticulous defense strategy centered on the key points of dispute.
Proving the Absence of a Relationship of Entrustment
For punishment for embezzlement to be established, the accused must be a “person who keeps” another person's property.
However, the clients had no custody contract or relationship of entrustment with the complainant, and had merely continued to use the fixtures that had been inside the hotel at the time it was won at auction.
Accordingly, the criminal law attorney clearly demonstrated, based on the requirements for embezzlement under the Criminal Act, that the clients did not qualify as “keepers” and therefore could not be subject to punishment for embezzlement.
Demonstrating the Absence of Any Manifestation of Intent to Unlawfully Acquire
In addition, the clients had never disposed of the fixtures or claimed them as their own property, and had simply been using them in operating the hotel.
The criminal law attorney intensively demonstrated that the intent to unlawfully acquire must be objectively manifested externally for punishment for embezzlement to be possible, and that no such conduct existed in this case.
Pointing Out the Absence of Legal Effect of the Demand for Return
The complainant's demand for return was also a point of dispute.
In fact, the demand for return was made not by the complainant himself but by a person claiming to be the complainant's agent, and no power of attorney, certificate of seal impression, or other document proving the authority of agency was submitted.
On the ground that, under the Civil Act, no legal effect arises with respect to the principal unless the authority of agency is proven, the criminal law attorney emphasized that the demand for return was not legally valid.
3. Successful Defense Against Punishment for Embezzlement and a Non-Prosecution Decision of “No Suspicion of Crime”
Once it was proven that the requirements for punishment for embezzlement were not satisfied, the prosecution concluded that this case did not constitute embezzlement, and the client was able to be released from the criminal proceedings after receiving a non-prosecution decision of “no suspicion of crime”.
If You Need Professional Assistance?
Embezzlement is not readily established by mere use or refusal to return property; key requirements such as a relationship of custody and the intent to unlawfully acquire must be satisfied before it can lead to punishment.
In actual cases, however, interpretations of these requirements often diverge, and the outcome can vary greatly depending on the direction of the initial response.
Daeryun Law Firm systematically supports the entire case, from analysis of the facts to responses to investigative agencies and legal argumentation.
If you have been unfairly placed at risk of punishment for embezzlement, we recommend that you establish an accurate response strategy at the early stage of the case through a 🔗legal consultation appointment.
This content is based on actual case studies of Daeryun Law LLC with some adaptations, and the copyright belongs to our firm.
Unauthorized reproduction, duplication, or distribution and other copyright infringements may result in legal action under applicable laws.
