Open Decision Ledger · Economic crime
Determining the Intent to Unlawfully Appropriate Slush Funds Alleged to Have Been Used for the Company, and Proof of the Amount of Gain under the Act on the Aggravated Punishment, etc. of Specific Economic Crimes
Translated from the Korean original. Read the Korean
Supreme Court, May 30, 2017, 2016Do9027 (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: 특정경제범죄가중처벌등에관한법률위반(배임)·특정경제범죄가중처벌등에관한법률위반(횡령)
Official text on the National Law Information Center
Question
Where the defendants assert that the slush funds were used for the company and circumstances consistent with that assertion come to light, may all of the slush funds be found to have been embezzled, and the amount of gain under the Act on the Aggravated Punishment, etc. of Specific Economic Crimes be found, solely because there are no objective records of where the funds were used?
Holding
It may not be recognized. The Supreme Court held that, where circumstances are revealed indicating that a substantial portion of the slush funds appears to have been spent for the company, one must return to the principle of the burden of proof, so that the prosecution must prove that each individual act of use was a use at the actor's own discretion, and that if the amounts spent for personal purposes cannot be separately identified, the constituent element that the gain was at least 500 million won cannot be regarded as proved either.
Points at issue, verbatim
피고인들이 회사의 비자금을 보관·관리하고 있다가 사용한 사실은 인정하면서도 회사를 위하여 인출·사용하였다고 주장하는 경우, 불법영득의사를 인정할 수 있는지 판단하는 방법
Unofficial English translation
Method of determining whether an intent to misappropriate may be recognized where the defendants admit the fact that they kept and managed the company's slush fund and then used it, but claim that they withdrew and used it for the company
Disposition
Partly reversed and remanded Stated in the decision
이 부분 사건을 서울고등법원에 환송한다. 검사의 상고를 모두 기각한다.
Unofficial English translation
This part of the case is remanded to the Seoul High Court. All appeals by the prosecutor are dismissed.
Form of the test
Circumstances weighed Stated in the decision
비자금을 사용한 시기, 경위, 결과 등을 종합적으로 고려하여 그 비자금 사용의 주된 목적이 개인적인 용도를 위한 것이라고 볼 수 있는지에 따라 신중하게 판단하여야 한다
Unofficial English translation
a careful determination must be made depending on whether the principal purpose of the use of the slush fund may be regarded as having been for personal use, taking into consideration comprehensively the timing, circumstances, results, etc. of the use of that slush fund
Factors
- 조성행위 자체로써 불법영득의사가 실현된 것으로 볼 수 있는지 여부
- 불법영득의사를 실현하는 행위로서의 횡령행위가 있었다는 점에 대하여 필요한 증명의 정도
- 횡령한 재물의 가액이 특정경제범죄 가중처벌 등에 관한 법률의 적용 기준이 되는 하한 금액을 초과한다는 점
- 경영상의 판단과 관련하여 기업의 경영자에게 배임의 고의가 있었는지 판단하는 방법
Unofficial English translation
• Whether the act of creating the fund itself may be regarded as having realized the intent to misappropriate
• The degree of proof required as to the existence of an act of embezzlement as an act realizing the intent to misappropriate
• The fact that the value of the property embezzled exceeds the minimum amount that serves as the criterion for application of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes
• Method of determining whether a corporate manager had intent to commit breach of trust in connection with a business judgment
Relation to precedent
Follows earlier decisions Stated in the decision
대법원 2009. 2. 26. 선고 2007도4784 판결
Unofficial English translation
Supreme Court Decision 2007Do4784 decided February 26, 2009
Decisions referred to
[1] 대법원 1994. 9. 9. 선고 94도998 판결(공1994하, 2679), 대법원 2002. 7. 26. 선고 2001도5459 판결(공2002하, 2136), 대법원 2006. 6. 27. 선고 2005도2626 판결, 대법원 2009. 2. 26. 선고 2007도4784 판결 / [2] 대법원 2013. 5. 9. 선고 2013도2857 판결(공2013상, 1072) / [3] 대법원 2004. 7. 22. 선고 2002도4229 판결(공2004하, 1480)
Burden of proof
The prosecution Stated in the decision
개별 사용행위와 관련하여 임의사용을 추단하기에 충분한 사정이 있다는 점은 검사가 이를 증명하여야 한다.
Unofficial English translation
The prosecutor must prove that, in relation to each individual act of use, there are sufficient circumstances from which it may be presumed that the fund was used at will.
Open question and revisit condition
Where there is a suspicion that part of the slush funds was used for personal purposes but that amount cannot be identified, to what extent may guilt be recognized for embezzlement in the course of business under the Criminal Act, rather than under the Act on the Aggravated Punishment, etc. of Specific Economic Crimes?
If subsequent Supreme Court decisions are rendered concerning the allocation of the burden of proof as to where slush funds were used, or the method of proving the amount of gain under the Act on the Aggravated Punishment, etc. of Specific Economic Crimes, this reading will be checked again.
Cross-family AI independent reading & axis check
7 of 8 axes matched GPT-6 Astra (OpenAI, codex CLI) · 2026-10-16
Compared with the independent reading of another AI family (GPT-6 Astra), which read only the original text without seeing the first reading, 7 of the 8 axes matched, and the readings diverged on the 8th axis (Open question and revisit condition).
Axis 8 (Open question and revisit condition): Primary “Where there is a suspicion that part of the slush funds was used for personal purposes but that amount cannot be identified, to what extent may guilt be recognized for embezzlement in the course of business under the Criminal Act, rather than under the Act on the Aggravated Punishment, etc. of Specific Economic Crimes?” vs Independent “What are the specific scope and amount of the slush funds proved to have been used for personal purposes at the retrial after remand?”
The first reading asks about the scope in which guilt may be recognized for the ordinary offence of embezzlement in the course of business when the amount cannot be identified, whereas the independent reading asks about the specific scope and amount of personal use to be proved at the retrial after remand.
피고인들이 회사의 비자금을 보관·관리하고 있다가 사용한 사실은 인정하면서도 회사를 위하여 인출·사용하였다고 주장하는 경우, 불법영득의사를 인정할 수 있는지 판단하는 방법Raw 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, weighing comprehensively the fact that only a small number of people knew of the existence of the slush funds, the fact that normal expense procedures were disregarded, the fact that there is no objective evidence substantiating the details of the uses, and the fact that business promotion expenses and position allowances were received separately, found that Defendant 1 and Defendant 3 had consumed the slush funds mainly for personal purposes, and, reversing the not guilty judgment of the first instance court, applied Article 3, paragraph (1), subparagraph 2 of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes to 1,123,500,000 won, excluding the remaining amount, and recognized guilt. As to the breach of trust charge, the not guilty judgment of the first instance court was affirmed as it stood.
Supreme Court standard: The Supreme Court, citing such matters as the fact that during the tenure of the former representative director as well, slush funds of a similar scale had been spent on cash-equivalent expenses such as congratulatory and condolence expenses, the consistent statements of the defendants and the testimony conforming thereto, the restrictions on the use of business promotion expenses, and the fact that the court below itself had not excluded the possibility of some expenditures by the company, found that there remains room for the possibility that a substantial portion of the slush funds was spent for the company. In such a case, the prosecution must prove use at the actor's own discretion, and if the amount used for personal purposes cannot be identified, the gain of at least 500 million won is likewise not proved; on that ground the Court reversed the guilty finding as to embezzlement, while it dismissed the prosecution's appeal against the not guilty finding as to breach of trust in accordance with the existing legal principle concerning business judgment.
Distinguishing conditions
- Cases where it is clearly revealed that the slush funds were raised not for a purpose of the corporation but for the purpose of taking out and misappropriating the corporation's funds, so that the intent to appropriate unlawfully was realized in the act of raising the funds itself
- Cases where the actor cannot give a credible account of the whereabouts or use of the slush funds and there is far more credible material showing that the funds were used for personal purposes
- Cases where the amounts spent for personal purposes can be separately distinguished and identified, so that it is proved that by those amounts alone the minimum amount under the Act on the Aggravated Punishment, etc. of Specific Economic Crimes is exceeded
Record verification notes
Before asserting the same conclusion, one first needs to check whether the character of the corporation's funds was retained in light of the motive for raising the slush funds and the manner in which they were held, whether materials actually conforming to the defendant's account were presented, and whether there were circumstances in which, after the funds were consumed for other purposes, a separate deposit or return was made.
From the official text
Points at issue
[1] 법인의 운영자나 관리자가 회계로부터 분리시켜 별도로 관리하는 ‘비자금’이 법인을 위한 목적이 아니라 법인의 자금을 빼내어 착복할 목적으로 조성한 것임이 명백히 밝혀진 경우, 조성행위 자체로써 불법영득의사가 실현된 것으로 볼 수 있는지 여부(적극) / 피고인들이 회사의 비자금을 보관·관리하고 있다가 사용한 사실은 인정하면서도 회사를 위하여 인출·사용하였다고 주장하는 경우, 불법영득의사를 인정할 수 있는지 판단하는 방법 / 불법영득의사를 실현하는 행위로서의 횡령행위가 있었다는 점에 대하여 필요한 증명의 정도 [2] 횡령한 재물의 가액이 특정경제범죄 가중처벌 등에 관한 법률의 적용 기준이 되는 하한 금액을 초과한다는 점에 대하여 필요한 증명의 정도 [3] 경영상의 판단과 관련하여 기업의 경영자에게 배임의 고의가 있었는지 판단하는 방법
Unofficial English translation
[1] Where it is clearly established that a 'slush fund,' separately managed by an operator or manager of a corporation after being separated from its accounting, was created not for the purpose of the corporation but for the purpose of taking out the corporation's funds and misappropriating them, whether the act of creating the fund itself may be regarded as having realized the intent to misappropriate (affirmative) / Method of determining whether an intent to misappropriate may be recognized where the defendants admit the fact that they kept and managed the company's slush fund and then used it, but claim that they withdrew and used it for the company / The degree of proof required as to the existence of an act of embezzlement as an act realizing the intent to misappropriate [2] The degree of proof required as to the fact that the value of the property embezzled exceeds the minimum amount that serves as the criterion for application of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes [3] Method of determining whether a corporate manager had intent to commit breach of trust in connection with a business judgment
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
원심판결 중 피고인 1에 대한 유죄 부분 및 피고인 3에 대한 부분을 파기하고, 이 부분 사건을 서울고등법원에 환송한다. 검사의 상고를 모두 기각한다.
Unofficial English translation
The portion of the judgment of the court below finding Defendant 1 guilty and the portion as to Defendant 3 are reversed, and this part of the case is remanded to the Seoul High Court. All appeals by the prosecutor are dismissed.
Provisions referred to
[1] 형법 제355조 제1항 [2] 형법 제355조 제1항, 제356조, 특정경제범죄 가중처벌 등에 관한 법률 제3조, 형사소송법 제307조, 제308조 [3] 형법 제355조 제2항, 제356조
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