Open Decision Ledger · Economic crime
Intent to repay after embezzlement and the intent to profit, fraud in loans obtained through window-dressed accounts, and the scope of additional collection of losses avoided through the use of undisclosed information
Translated from the Korean original. Read the Korean
Supreme Court, Jan. 27, 2012, 2011Do14247 (judgment)
No holding summary · checked against points at issue. The official text publishes no summary of the holding for this decision. The quotation and factors in this record are copied verbatim from the points at issue; the evidence for each axis is taken from the points at issue, the order and the reasons.
Case name: 증권거래법위반·자본시장과금융투자업에관한법률위반·특정경제범죄가중처벌등에관한법률위반(사기)·상법위반·특정경제범죄가중처벌등에관한법률위반(횡령)·업무상횡령
Official text on the National Law Information Center
Question
Does an intention to repay or restore the funds after embezzlement negate the intent to profit? Does obtaining a loan with window-dressed financial statements constitute fraud even where collateral is provided or the loan is repaid afterwards? Of the losses avoided through the use of undisclosed information, is the portion disposed of afterwards also subject to additional collection?
Holding
Even where there is an intention to return or make good or restore the funds afterwards, the intent to profit is recognized, and the amount made good is not deducted from the amount embezzled. Where a financial institution is deceived by financial statements prepared through window dressing and a loan is thereby obtained, the offense of fraud is established regardless of the ability to repay, collateral, or subsequent repayment. Losses avoided through the use of undisclosed information are amounts causally connected to the risk arising from the violating act, and even where part of them was used for loan principal and interest or public charges, this is merely a post hoc disposition of profits already attributed to the defendant, so the full amount of additional collection was held to be justified.
Points at issue, verbatim
횡령한 재물을 사후에 반환하거나 변상·보전하는 의사가 있는 경우 불법영득의사가 인정되는지 여부(적극)
Unofficial English translation
whether the intent of unlawful gain is recognized where there is an intention to return or make compensation for or secure the misappropriated property after the fact (affirmative)
Disposition
Dismissed Stated in the decision
상고를 모두 기각한다.
Unofficial English translation
All appeals are dismissed.
Form of the test
Existing test applied Read from the decision
앞서 본 법리와 기록에 비추어 살펴보면 원심의 위와 같은 판단은 정당하고
Unofficial English translation
In view of the legal principle set out above and the records, the court below's determination as set out above is justifiable, and
Factors
- 사후에 변상·보전한 금액을 횡령금액에서 공제하여야 하는지 여부(소극)
- 분식회계에 의한 재무제표 등으로 금융기관을 기망하여 대출을 받은 경우
- 변제의사와 변제능력이 있거나, 담보가 제공되었거나
- ‘위반행위로 얻은 이익 또는 회피한 손실액’의 의미
Unofficial English translation
• whether the amount compensated for or secured after the fact must be deducted from the amount of embezzlement (negative)
• where a loan is obtained by deceiving a financial institution with financial statements prepared by way of window-dressing accounting
• the existence of an intention and ability to repay, or the provision of collateral, or
• the meaning of 'the profit gained or the loss avoided by the violation'
Relation to precedent
Follows earlier decisions Stated in the decision
대법원 2010. 5. 27. 선고 2010도3399 판결
Unofficial English translation
Supreme Court Decision 2010Do3399 decided May 27, 2010
Decisions referred to
[1] 대법원 2006. 11. 10. 선고 2004도5167 판결, 대법원 2010. 5. 27. 선고 2010도3399 판결 / [2] 대법원 2005. 4. 29. 선고 2002도7262 판결(공2005상, 871) / [3] 대법원 2009. 7. 9. 선고 2009도1374 판결(공2009하, 1374), 대법원 2010. 4. 15. 선고 2009도13890 판결(공2010상, 954), 대법원 2011. 7. 28. 선고 2008도5399 판결
Burden of proof
The prosecution Stated in the decision
횡령행위가 있다는 점은 검사가 입증하여야 하는 것으로서
Unofficial English translation
the fact that an act of embezzlement was committed is a matter that the prosecutor must prove, and
Open question and revisit condition
Where part of the losses avoided through the use of undisclosed information is substantially attributed to an accomplice or a third party, up to what limit may that portion be collected from the defendant by way of additional collection?
If the profit calculation provision of Article 443 of the Financial Investment Services and Capital Markets Act or the additional collection provision of the Act on Regulation and Punishment of Criminal Proceeds Concealment is amended, this reading will be re-examined.
Cross-family AI independent reading & axis check
5 of 8 axes matched GPT-6 Astra (OpenAI, codex CLI) · 2026-10-16
In comparison with an independent reading by another AI (GPT-6 Astra), which read only the original text without seeing the primary reading, 5 of the 8 axes matched, and the readings diverged on Axis 4 (Form of the test), Axis 7 (Burden of proof), and Axis 8 (Open question and revisit condition).
Axis 4 (Form of the test): Primary “Existing test applied” vs Independent “Elements stated”
Given that the Holdings set out whether the crime is established and the meaning of illegal proceeds while the disposition dismisses the final appeal, the primary may be seen as focusing on the application to specific additional collection amounts and the like, whereas the independent reading focuses on general elements.
분식회계에 의한 재무제표 등으로 금융기관을 기망하여 대출을 받은 경우, 사기죄의 성립 여부(적극)Axis 7 (Burden of proof): Primary “The prosecution” vs Independent “Not addressed”
The Holdings provided address the establishment of the crime and the scope of illegal proceeds but do not expressly state the burden of proof, so the primary may be seen as inferring the party bearing the burden of proof in a criminal case, whereas the independent reading classifies on the basis of whether there is express mention.
횡령행위가 있다는 점은 검사가 입증하여야 하는 것으로서Axis 8 (Open question and revisit condition): Primary “Where part of the losses avoided through the use of undisclosed information is substantially attributed to an accomplice or a third party, up to what limit may that portion be collected from the defendant by way of additional collection?” vs Independent “What are the specific circumstances in which a court may exercise its discretion not to order additional collection of illegal proceeds for which a causal connection with the violating act is recognized?”
The primary asks as to the limits on collecting from the defendant profits attributed to an accomplice or a third party, whereas the independent reading asks as to the circumstances in which the court may exercise its discretion not to order additional collection.
횡령한 재물을 사후에 반환하거나 변상·보전하는 의사가 있는 경우 불법영득의사가 인정되는지 여부(적극)Raw responses and comparison record: Protocol · Blind readings (JSONL) · Axis comparison (JSONL) · SHA-256 (JSON)
Lower-court contrast & scope of application
Lower-court reading vs. Supreme Court holding
Lower-court context: The court below found that Defendant 1 arbitrarily withdrew a total of 8,190,399,860 won of company funds under the pretext of advances and the like and embezzled it, and, finding that he led and directed the window dressing and the loans obtained thereby, found him guilty of false entry in a business report and violation of the Act on the Aggravated Punishment of Specific Economic Crimes (fraud), and ordered additional collection of the entire amount of 2,783,724,808 won in losses avoided through the use of undisclosed information relating to the delisting. Some counts of embezzlement in the course of business were found not guilty, and as to Defendant 2, the charge of embezzlement of 380 million won was found not to have been specified and the prosecution was dismissed on that count.
Supreme Court standard: The Supreme Court affirmed all of the findings of the court below. It held that the intention to make good after the fact cannot negate the intent to profit, that the provision of collateral has no effect on the establishment of the offense of fraud, and that the use of the proceeds of the sale of shares for loan principal and interest or public charges is merely a post hoc method of disposing of the profits. It also did not accept Defendant 2's argument on sentencing or the prosecution's appeals concerning the not guilty and dismissal of prosecution portions, and dismissed all appeals.
Distinguishing conditions
- Where the withdrawal of company funds was accompanied by lawful procedures such as a board resolution, an agreement on interest or the due date for repayment, and where there is documentary evidence and a reasonable explanation as to the use of the funds
- Where there are materials supporting the fact that the loan was in fact a refinancing loan amounting only to an extension of the due date for repayment of an existing debt
- Where part of the criminal proceeds is attributed to an accomplice or the like and is not substantially attributed to the defendant
Record verification notes
Before asserting the same conclusion, check whether the use of the withdrawn company funds is explained by documentary evidence, whether the financial statements presented at the time of the loan were in fact false, and whether the avoided losses were first attributed to the defendant and then disposed of, or whether they were attributed to another person from the outset.
From the official text
Points at issue
[1] 횡령한 재물을 사후에 반환하거나 변상·보전하는 의사가 있는 경우 불법영득의사가 인정되는지 여부(적극) 및 사후에 변상·보전한 금액을 횡령금액에서 공제하여야 하는지 여부(소극) [2] 분식회계에 의한 재무제표 등으로 금융기관을 기망하여 대출을 받은 경우, 사기죄의 성립 여부(적극) 및 이 경우 변제의사와 변제능력이 있거나, 담보가 제공되었거나, 피해자의 재산상에 손해가 없고 사후에 대출금이 상환되었다고 하여 달리 보아야 하는지 여부(소극) [3] 구 증권거래법 제207조의2에서 정한 ‘위반행위로 얻은 이익 또는 회피한 손실액’의 의미 및 구 범죄수익은닉의 규제 및 처벌 등에 관한 법률상 임의적 몰수·추징 대상인 ‘ 구 증권거래법 제207조의2 위반죄로 인한 불법수익’의 의미
Unofficial English translation
[1] whether the intent of unlawful gain is recognized where there is an intention to return or make compensation for or secure the misappropriated property after the fact (affirmative), and whether the amount compensated for or secured after the fact must be deducted from the amount of embezzlement (negative) [2] whether the offense of fraud is established where a loan is obtained by deceiving a financial institution with financial statements prepared by way of window-dressing accounting (affirmative), and whether the matter should be viewed differently by reason of the existence of an intention and ability to repay, or the provision of collateral, or the absence of any loss to the victim's property, and the repayment of the loan after the fact (negative) [3] the meaning of 'the profit gained or the loss avoided by the violation' as provided in Article 207-2 of the former Securities and Exchange Act, and the meaning of 'illegal proceeds from the offense of violating Article 207-2 of the former Securities and Exchange Act,' which is subject to discretionary confiscation and collection of equivalent value under the former Act on Regulation and Punishment of Criminal Proceeds Concealment
Summary of the holding
The official text publishes no summary of the holding for this decision. The quotation and factors in this record are copied verbatim from the points at issue; the evidence for each axis is taken from the points at issue, the order and the reasons.
Order
상고를 모두 기각한다.
Unofficial English translation
All appeals are dismissed.
Provisions referred to
[1] 형법 제355조 제1항 [2] 형법 제347조 제1항 [3] 구 증권거래법(2007. 8. 3. 법률 제8635호 자본시장과 금융투자업에 관한 법률 부칙 제2조로 폐지) 제207조의2(현행 자본시장과 금융투자업에 관한 법률 제443조 참조), 구 범죄수익은닉의 규제 및 처벌 등에 관한 법률(2007. 12. 21. 법률 제8719호로 개정되기 전의 것) 제2조 제1호 [별표] 제16호(현행 제2조 제1호 [별표] 제10호 참조), 제2호 (가)목, 제8조, 제10조
Read 2026-10-16 · Cross-read 2026-10-16. All quotes matched against the official text. The Chinese-character placeholders the court used for anonymised parties are given in their Korean readings, and parenthetical Chinese-character glosses are omitted.
Every entry is published only after all quotes have been matched character by character against the official text, and audited by an independent second reading from a different model family across all eight axes. Both agreed axes and text-grounded interpretive divergences are recorded openly. The ledger is a research record, not an assessment of the court or advice on any matter.
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