Open Decision Ledger · Economic crime
Criteria for Determining the Use of Material Nonpublic Information, Intent to Obtain Unlawful Gain in Embezzlement, and the Appellate Court's Duty to Permit Amendment of the Indictment
Translated from the Korean original. Read the Korean
Supreme Court, Sept. 21, 2017, 2017Do7843 (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(횡령)·자본시장과금융투자업에관한법률위반·특정범죄가중처벌등에관한법률위반〔허위세금계산서교부등(일부인정된죄명:조세범처벌법위반)〕
Official text on the National Law Information Center
Question
Where a custodian takes company funds and lets a third party use them, may an intent to obtain unlawful gain be found, and may the appellate court refuse, on grounds of timing or the burden on the trial, an amendment of the indictment that preserves the identity of the charged facts?
Holding
Where a custodian disposes of property against the owner's interests for the benefit of himself or a third party, an intent of unlawful gain may be recognized. The Supreme Court held that even on appeal, where the identity of the charged facts is recognized, the amendment of the indictment must be permitted, and that this does not deprive the defendant of the benefit of a trial instance.
Points at issue, verbatim
보관자가 자기 또는 제3자의 이익을 위하여 소유자의 이익에 반하여 재물을 처분한 경우, 그 재물에 대한 불법영득의사를 인정할 수 있는지 여부(적극)
Unofficial English translation
Where a custodian disposed of the article contrary to the owner's interests for the benefit of himself or a third party, whether the intent of unlawful gain as to that article may be recognized (affirmative)
Disposition
Partly reversed and remanded Stated in the decision
원심판결 중 피고인 2에 대한 부분을 파기하고, 이 부분 사건을 서울고등법원에 환송한다.
Unofficial English translation
The judgment of the court below is reversed insofar as it concerns Defendant 2, and this part of the case is remanded to the Seoul High Court.
Form of the test
Existing test applied Read from the decision
위와 같은 사실관계를 앞서 본 법리에 비추어 살펴보면
Unofficial English translation
Examining the foregoing facts in light of the legal principle set forth above,
Factors
- 미공개중요정보를 인식한 상태에서 특정증권 등의 매매나 그 밖의 거래를 한 경우
- 횡령죄의 성립시기
- 기본적 사실관계에서 동일한 경우
- 항소심에서 공소장을 변경한 경우, 피고인의 심급의 이익을 박탈하는 것인지 여부(소극)
Unofficial English translation
• Where trading in specific securities, etc. or other transactions is conducted while aware of material nonpublic information
• The time when the crime of embezzlement is constituted
• Where they are identical in their basic facts
• Where the indictment is amended in the appellate instance, whether this deprives the defendant of the benefit of instance (negative)
Relation to precedent
Follows earlier decisions Stated in the decision
대법원 2017. 1. 12. 선고 2016도10313 판결
Unofficial English translation
Supreme Court Decision 2016Do10313 decided January 12, 2017
Decisions referred to
[1] 대법원 2017. 1. 12. 선고 2016도10313 판결(공2017상, 422) / [2] 대법원 2004. 12. 9. 선고 2004도5904 판결(공2005상, 147), 대법원 2016. 8. 30. 선고 2013도658 판결(공2016하, 1564) / [3] 대법원 1995. 2. 17. 선고 94도3297 판결(공1995상, 1508), 헌법재판소 2012. 5. 31. 선고 2010헌바128 전원재판부 결정(헌공188, 1012)
Burden of proof
Not addressed Not in the decision
Open question and revisit condition
Even where an amendment of the indictment on appeal establishing identity of the charged facts is applied for extremely late and substantively infringes the right of defense, is there no measure other than suspension of the trial proceedings that the court may take?
If a provision concerning the timing of amendment of the indictment is newly enacted in Article 298 of the Criminal Procedure Act, or a new decision concerning restrictions on amendment of the indictment on appeal is handed down, this reading will be checked again.
Cross-family AI independent reading & axis check
6 of 8 axes matched GPT-6 Astra (OpenAI, codex CLI) · 2026-10-16
When compared with an independent reading by another family of AI (GPT-6 Astra), which read only the original text without seeing the first reading, 6 of the 8 axes matched, and the readings diverged on axis 4 (Form of the test) and axis 8 (Open question and revisit condition).
Axis 4 (Form of the test): Primary “Existing test applied” vs Independent “Elements stated”
Because the original text contains both the general criteria for the establishment of the offense and for amendment of the indictment and the order of partial reversal and remand, the first reading may emphasize the application to the holding of the court below, while the independent reading may emphasize the statement of requirements for each holding.
보관자가 자기 또는 제3자의 이익을 위하여 소유자의 이익에 반하여 재물을 처분한 경우, 그 재물에 대한 불법영득의사를 인정할 수 있는지 여부(적극)Axis 8 (Open question and revisit condition): Primary “Even where an amendment of the indictment on appeal establishing identity of the charged facts is applied for extremely late and substantively infringes the right of defense, is there no measure other than suspension of the trial proceedings that the court may take?” vs Independent “In what scope is identity established between the charged facts added on remand and the existing charged facts, and in what scope are the respective acts of embezzlement recognized?”
The first reading asks about the means of responding to an infringement of the right of defense caused by a late amendment of the indictment, while the independent reading asks in what scope identity and acts of embezzlement are recognized on remand.
보관자가 자기 또는 제3자의 이익을 위하여 소유자의 이익에 반하여 재물을 처분한 경우, 그 재물에 대한 불법영득의사를 인정할 수 있는지 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 Defendant 1 guilty of the embezzlement relating to the payment of his fine and of the use of material nonpublic information, and found Defendant 2 guilty of the issuance of false tax invoices, but found not guilty the embezzlement at item 17 of the schedule of offenses. As to the 100 million won at item 18, it found not guilty on the sole grounds that most of it had been used by acquaintances of Defendant 1 and that Defendant 2 had merely followed Defendant 1's instructions, and it denied the prosecution's application for permission to amend the indictment on the ground that the application was made far too late and that prolongation of the trial was inevitable.
Supreme Court standard: The Supreme Court accepted as it stood the finding of guilt as to Defendant 1 and the finding of not guilty at item 17. As to item 18, however, it took the view that the act of remitting the company's funds circuitously, receiving them back, and then having acquaintances of the representative director use them is likely to constitute a disposition for the benefit of a third party and thus to amount to embezzlement; and, correcting the court below, it held that the court below must first examine the identity of the charged facts and, if found, permit the amendment of the indictment, and it reversed and remanded the entire portion as to Defendant 2.
Distinguishing conditions
- Where circumstances appear from the record that the property disposed of by the custodian was used for the benefit of the company, which is the actual owner
- Where the amended charged facts are not identical to the charged facts adjudicated by the first-instance court in their basic facts
- Where there are special circumstances such that the decision to trade had already been finalized before the material nonpublic information was learned and the information cannot be regarded as one of the factors in the transaction
Record verification notes
Before asserting the same conclusion, first check whether there is contrary evidence that the funds were used for the business purposes of the company that owned them, and whether the added charged facts maintain identity with the existing charged facts, such as by way of a single comprehensive offense.
From the official text
Points at issue
[1] 구 자본시장과 금융투자업에 관한 법률 제174조 제1항 각호의 어느 하나에 해당하는 자가 미공개중요정보를 인식한 상태에서 특정증권 등의 매매나 그 밖의 거래를 한 경우, 미공개중요정보를 이용하여 거래를 한 것인지 판단하는 기준 [2] 횡령죄의 성립시기 및 보관자가 자기 또는 제3자의 이익을 위하여 소유자의 이익에 반하여 재물을 처분한 경우, 그 재물에 대한 불법영득의사를 인정할 수 있는지 여부(적극) [3] 공소장 변경 전·후 공소사실이 기본적 사실관계에서 동일한 경우, 새로운 공소의 추가적 제기와 다르지 않더라도 항소심에서 공소장변경을 할 수 있는지 여부(적극) / 항소심에서 공소장을 변경한 경우, 피고인의 심급의 이익을 박탈하는 것인지 여부(소극)
Unofficial English translation
[1] Where a person falling under any one of the subparagraphs of Article 174(1) of the former Financial Investment Services and Capital Markets Act engaged in the trading of specific securities, etc. or other transactions while aware of material nonpublic information, the criteria for determining whether the person traded using the material nonpublic information [2] The time when the crime of embezzlement is constituted and, where a custodian disposed of the article contrary to the owner's interests for the benefit of himself or a third party, whether the intent of unlawful gain as to that article may be recognized (affirmative) [3] Where the facts of the public prosecution before and after the amendment of the indictment are identical in their basic facts, whether the indictment may be amended in the appellate instance even though this is no different from the additional filing of a new public prosecution (affirmative) / Where the indictment is amended in the appellate instance, whether this deprives the defendant of the benefit of instance (negative)
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 2에 대한 부분을 파기하고, 이 부분 사건을 서울고등법원에 환송한다. 피고인 1의 상고를 기각한다.
Unofficial English translation
The judgment of the court below is reversed insofar as it concerns Defendant 2, and this part of the case is remanded to the Seoul High Court. The final appeal of Defendant 1 is dismissed.
Provisions referred to
[1] 구 자본시장과 금융투자업에 관한 법률(2013. 5. 28. 법률 제11845호로 개정되기 전의 것) 제174조 제1항 [2] 형법 제355조 제1항 [3] 헌법 제27조 제1항, 형사소송법 제298조 제1항, 제4항, 제370조
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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