Busan Attorney Recommendation | Assisting a Client Sued by a Business Partner for Occupational Embezzlement and Fraud, Concluding the Case With a Non-Prosecution Decision

The client, who resides in Busan, was a business partner who ran a Pilates studio together with the complainant.

Then one day, the complainant filed a complaint alleging that the client had manipulated the studio's sales and embezzled a portion of them.

Because the client felt the situation was deeply unfair, the client obtained an attorney recommendation in Busan and came to the Daeryun Busan Office.

A Busan attorney will explain the occupational embezzlement and the crime of fraud in which the client was involved.

Embezzlement refers to a crime committed when a person who keeps another's property embezzles that property or refuses to return it.

• When a person who keeps another's property embezzles that property or refuses to return it (Article 355, Paragraph 1 of the Criminal Act): imprisonment for not more than 5 years or a fine not exceeding 15 million won

• When a person who administers another's affairs obtains a pecuniary benefit, or causes a third party to obtain it, through an act in breach of that duty, and causes loss to the principal (Article 355, Paragraph 2 of the Criminal Act): imprisonment for not more than 5 years or a fine not exceeding 15 million won

• A person who commits the offense under Article 355 in breach of an occupational duty (Article 356 of the Criminal Act): imprisonment for not more than 10 years or a fine not exceeding 30 million won

-Sentencing factors for embezzlement

▲ If the risk of loss did not materialize to a significant degree

▲ If the degree of breach of duty was minor

▲ Sincere remorse

▲ No prior criminal punishment

🔗The crime of fraud is a crime committed when a person deceives another and receives property or obtains a pecuniary benefit, or causes a third party to receive property or obtain a pecuniary benefit.

What matters in the crime of fraud is whether there was a deceptive act and whether there was intent.

If the crime of fraud is recognized, the offender may be punished under the Criminal Act by imprisonment for not more than 10 years or a fine not exceeding 20 million won.

The Busan attorney pointed out the lack of evidence for the complainant's claims.

The complainant claims that the client manipulated the studio's sales and embezzled a portion of them.

However, the complainant also had access to the POS device, and because the daily revenue was organized and submitted to the complainant, the complainant would have known better than anyone whether there was actual revenue.

In addition, to assert the amount of embezzlement claimed by the complainant, the complainant would have had to specify when the revenue arose, its scale, the timing of the embezzlement, and similar details.

The Busan attorney argued that, although the complainant should have specified the actual amount of expenditures that cannot be confirmed from the books, the costs, and how much remained after offsetting such costs, it was unreasonable to claim embezzlement based solely on a simple arithmetic summation of revenue.

Given the nature of the industry, there are tuition fees received into each party's individual account for various practical reasons, such as tax savings.

The Busan attorney pointed out that the complainant should have identified the embezzlement by comparing the tuition fees transferred into the complainant's account and the amounts recorded on the POS device against how the rent, maintenance fees, and loans required for operation during the partnership period were used, yet the method of calculating the embezzled amount and the very statement of facts regarding the act of embezzlement were abstract and unclear.