교비회계자금 전용에 대한 횡령죄 귀속에서 불법영득의사의 자리매김

Abstract

This Article examines on what grounds has the Korean Supreme Court(hereinafter “Court”) found chief directors of school corporations or principals of private schools guilty of embezzlement when they appropriated revenues from school-expense accounts. The Court has found them guilty of embezzlement on the grounds that they appropriated such revenues, thereby violating Section 29 of the PRIVATE SCHOOL ACT, which prohibits chief directors of school corporations or principals of private schools from diverting or loaning the revenues belong to the school-expense accounts to other accounts. However, the Court's such reasoning cannot be justified for the following reasons. First of all, the Court has depended on provisions of the PRIVATE SCHOOL ACT when considering whether such chief directors or principals should be found criminally responsible for the appropriation of the revenues. Secondly, the Court has never considered the intent of illegal acquisition element of embezzlement thoroughly as well as meaningfully. Therefore, it is needed for the Court to stay away for the PRIVATE SCHOOL ACT when determining if the chief directors' or the principals' appropriation of the revenues constitutes a crime of embezzlement. In so doing, the Court should found the chief directors or the principals guilty of embezzlement only when such chief directors or principals appropriates the revenues for their own interests.