법조 제75권 제3호(통권 제777호) 연구논문 - 250 - ❙Abstract❙ Holding a Suspense Rceipt and the Ontent of Unlawful Acquisition in the Crime of Occupational Embezzlement 36)37)38) Moon-hee Kim* / Seung-gi Shin** / Hyun-Jun Jung*** This paper provides a definitive analysis of how a representative director's possession of gasu-geum (provisional deposit) claims affects the recognition of the intent to unlawfully appropriate (bulbeop-yeongdeukeui-sa) in the crime of embezzlement under Korean criminal law. After cross-verifying the original text of nine landmark Supreme Court decisions spanning 1988–2024 and correcting prior scholarly errors, the paper demonstrates that Korean case law has constructed a coherent bifurcated framework. Line A decisions (98do2296, 2008do6982, 2018do16469) negate unlawful intent where funds have not definitively vested in the company and the director genuinely applied them toward repayment of an existing claim. Line B decisions (88do936, 2004do7585) affirm unlawful intent where the director misappropriated company funds for personal use, regardless of any concurrent claim. The 95do59 line addresses post-hoc set-off claims after the crime has already been consummated — an entirely different scenario. The paper identifies four sequential adjudicative criteria: (1) substantive existence and legal character of the gasu-geum claim; (2) whether gasu-geum has definitively vested in the company; (3) specific causal linkage between withdrawal and claimed repayment; and (4) inferred intent at the time of withdrawal. Comparative analysis of German StGB §246 and §266 (with original German text), U.S. 18 U.S.C. §666 and MPC §223.2 (with original English text), and Japanese Penal Code Art. 253 (with Japanese text) confirms the international consistency of the bifurcated approach. The paper concludes with three concrete legislative proposals: (1) amending Commercial Act Art. 398 to mandate pre-board notification and approval for gasu-geum repayments, (2) strengthening disclosure requirements * Jipyong LLC Lawyer ** Jipyong LLC Lawyer *** Jipyong LLC Lawyer
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