CONTENTS
- 1. The Client Who Sought Out an Embezzlement-Specialized Attorney
- - Key Issues in the Occupational Embezzlement Case
- - Level of Penalty for Embezzlement
- 2. Assistance Provided by the Embezzlement Attorney
- - Pointing Out the Complainant's Lack of Standing
- - Account Analysis and Verification of the Source of Funds
- - Emphasizing the Absence of Intent to Unlawfully Obtain the Property
- 3. Result of the Embezzlement Attorney's Assistance, a Non-referral Decision
- - If You Have Been Implicated in an Embezzlement Case
1. The Client Who Sought Out an Embezzlement-Specialized Attorney
The client, who sought out an embezzlement-specialized attorney, was the representative of a small or medium-sized enterprise and was experiencing financial difficulties in the course of operating the company.
In this situation, the client's former spouse filed a criminal complaint on a charge of occupational embezzlement, alleging that the client had purchased gift certificates with the corporate card, converted them into cash, and used the funds for personal purposes.
In reality, however, the client had secured cash through gift-certificate discounting in order to raise insufficient working capital, combined it with the client's own funds, deposited it into the company account, and used it for operating expenses.
The client felt deeply aggrieved, stating that the divorced former spouse had pursued a baseless complaint out of ill will toward the client, and requested the assistance of an embezzlement-specialized attorney to respond to the case.
Key Issues in the Occupational Embezzlement Case
The charge the client was facing was ‘occupational embezzlement.’
Where a person who keeps another's property in the course of business unlawfully disposes of it or refuses to return it, occupational embezzlement is established.
Elements of Occupational Embezzlement
Category | Occupational embezzlement |
Subject of the act | A person who keeps another's property in the course of business |
Act | Refusing to return property in one's keeping or disposing of the property |
Intent | The presence of an intent of unlawful acquisition, that is, an intent to dispose of another's property on one's own without authority, treating it as if it were one's own |
At this point, the principal issue was whether an ‘intent of unlawful acquisition,’ that is, an intent to dispose of the property on one's own without authority, treating it as if it were one's own, existed.
Complainant's allegation | The client converted gift certificates purchased with the corporate card into cash and used the funds to repay an advance payment → Misappropriation of company funds |
Facts actually confirmed | The proceeds from converting the gift certificates into cash were deposited into the company account and used as working capital |
A portion was covered from funds sent by the client's current spouse | |
Key legal principle | The mere fact of purchasing gift certificates with the corporate card does not establish occupational embezzlement |
After organizing the principal issues set out above, the embezzlement-specialized attorney established a strategy to deny the charge against the client.
Level of Penalty for Embezzlement
If occupational embezzlement is established and the suspicion is found, the following penalties for embezzlement may be imposed under Article 356 of the Criminal Act.
Statutory Provision | Level of Penalty for Embezzlement |
Article 356 of the Criminal Act | Imprisonment with labor for not more than 10 years or a fine not exceeding 30 million won |
2. Assistance Provided by the Embezzlement Attorney
The embezzlement attorney examined the essence of the case point by point and established a defense strategy so that the client would not be wrongfully subjected to a penalty for embezzlement.
In particular, the attorney rebutted the complainant's assertions as differing from the facts along three lines: the complainant's standing, the account records and source of funds, and whether there was an intent to unlawfully obtain the property.
Pointing Out the Complainant's Lack of Standing
The case originated from a criminal complaint filed by the client's former spouse.
However, the complainant had already disposed of all of the company's shares long before and was no longer a shareholder, yet filed the complaint while claiming to be a shareholder.
In response, the embezzlement defense attorney emphasized that since the complainant was not a shareholder, the complainant had no standing to file a criminal complaint, and that even if the facts were subject to dispute, the matter should be handled only as an accusation rather than as a criminal complaint.
The investigative agency accepted this argument, and the matter was converted from a complaint case into an accusation case.
Account Analysis and Verification of the Source of Funds
The next issue was the suspected structure asserted by the accuser of purchasing gift certificates, converting them into cash, and then repaying provisional payments.
The accuser claimed that the client converted gift certificates into cash to reduce provisional payments that were in the nature of a personal debt, but the account records obtained by the embezzlement defense attorney showed otherwise.
The amounts actually deposited into the corporate account and the changes in the provisional payment account did not exactly match the accuser's claims, and a substantial portion of the funds that flowed into the company account during the same period was confirmed to have originated from funds in the client's personal account or from financial support provided by the client's current spouse.
In other words, it was possible to demonstrate that the accuser's claim that the conversion of gift certificates into cash directly led to embezzlement lacked sufficient basis.
Emphasizing the Absence of Intent to Unlawfully Obtain the Property
Lastly, the embezzlement defense attorney emphasized that there was no intent to unlawfully obtain the property, which is a requirement for the establishment of occupational embezzlement.
Occupational embezzlement requires an intent to dispose of another person's property as if it were one's own, but the client's conduct was instead a measure to secure operating funds for the company.
A review of the actual deposit records showed that the client did not take any personal benefit and instead steadily added funds and deposited them into the corporate account.
Accordingly, it was made clear that the client's conduct was merely a process of circulating funds for the company's management and could not be regarded as personal misappropriation or an intent to unlawfully obtain the property, as the accuser claimed.
3. Result of the Embezzlement Attorney's Assistance, a Non-referral Decision
After comprehensively reviewing the legal reasoning and evidence presented by the embezzlement defense attorney, the police determined that the charge of occupational embezzlement could not be applied to the client and rendered a non-referral decision.
Through this, the client was able to be cleared of the wrongful suspicion and to conclude the matter at an early stage.
If You Have Been Implicated in an Embezzlement Case
In the case of occupational embezzlement, even an attempt may be subject to a penalty for embezzlement, so it is necessary to mount an active defense from the early stage of the case in order to be clearly cleared of the suspicion.
At Daeryun LLC, through a dedicated consultation attorney system, the firm clearly identifies the matter and its issues and establishes the direction of the initial response through analysis of similar cases.
Thereafter, a dedicated attorney is assigned according to the type of case and its specific field, making it possible to provide detailed assistance from accompaniment at the police investigation and adjustment of the direction of statements through to the trial stage.
If you have been wrongfully implicated in a criminal case, please feel free to entrust your case to us at any time 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.
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