사립학교 교비회계 자금의 용도외 사용과 횡령죄 성립여부

Abstract

In most supreme court’s cases, the judicial precedent is that embezzlement is guilty in case that the enforcement of the private established school's accounts is out of order. This issue is on the understanding of embezzlement's legal nature, and as well as that is same in case that the enforcement of money or a fungible is out of purpose. A common view and the mainstream of judicial precedent understand the embezzlement's nature is possessive taking, and it is logical that its protective legal interest should be understood the right of ownership in that point of view. Because in the current criminal law the attempt of embeazzlement is guilty and the unlawful possessive intent consists of two elements, The insufficiency of positive element of the unlawful possessive intent could not constitute the consummation of embezzlement, we should understand the behavior only constitutes the attempt of embezzlement. Furthermore, the judicial precedents that the consummation of embezzlement is conststuted in case that the enforcement of money or a fungible is out of purpose are should be reviewed and modifed. The ruling of the former criminal act is continuously adopted without deep consideration. The ruling is unlawful from the viewpoint of the principle of legality.