What is embezzlement?
Embezzlement is defined in Article 355 of the Korean Criminal Act as follows.
A person who, having custody of another's property, embezzles such property or refuses to return it shall be punished by imprisonment for not more than 5 years or a criminal fine not exceeding KRW 15 million.
Objective elements
A person who has custody of another's property
This means someone who, under a relationship of entrustment, is in a position to control, either in fact or in law, and dispose of property left in their keeping by another.
In other words, it refers not to physical possession of the property but to a status or authority that allows its disposal.
Embezzles such property or refuses to return it
This means consumption, removal, withdrawal, concealment, sale, lending, creating a mortgage, applying it toward repayment, and the like.
Subjective elements
Intent
Because embezzlement is defined under the Criminal Act, a person cannot be punished without intent, as set out in Article 13 of the Korean Criminal Act.
Article 13 (Intent) An act performed without recognition of the facts that constitute the elements of a crime shall not be punished. However, this shall not apply where the law provides otherwise.
Intent of unlawful appropriation
Embezzlement is established when the act is carried out with the intent to benefit oneself or a third party.
Penalties for embezzlement
The sentencing guidelines for embezzlement are as follows.
| Type | Category | Mitigated | Standard | Aggravated |
| 1 | Under KRW 100 million | ~ 10 months | 4 months ~ 1 year 4 months | 10 months ~ 2 years 6 months |
| 2 | KRW 100 million or more, under KRW 500 million | 6 months ~ 2 years | 1 year ~ 3 years | 2 years ~ 5 years |
| 3 | KRW 500 million or more, under KRW 5 billion | 1 year 6 months ~ 3 years | 2 years ~ 5 years | 3 years ~ 6 years |
| 4 | KRW 5 billion or more, under KRW 30 billion | 2 years 6 months ~ 5 years | 4 years ~ 7 years | 5 years ~ 8 years |
| 5 | KRW 30 billion or more | 4 years ~ 7 years | 5 years ~ 8 years | 7 years ~ 11 years |
The penalty for embezzlement varies depending on the amount involved.
Embezzlement and breach of trust
Like embezzlement, breach of trust is defined in Article 355 of the Korean Criminal Act.
②A person who, being in charge of another's affairs, obtains a pecuniary advantage or causes a third party to do so through an act in breach of their duty, thereby inflicting loss on the principal, shall be subject to the same punishment as set out in the preceding paragraph.
The difference between embezzlement and breach of trust here is that embezzlement requires the appropriation of property, whereas breach of trust targets a
pecuniary advantage.
That said, both breach of trust and embezzlement are fundamentally based on a relationship of trust, and because there is no difference in the applicable sentencing range
, punishing embezzlement as breach of trust does not affect the outcome of the judgment, and absent any
special circumstances, embezzlement may be treated and punished as breach of trust without amending the indictment.
Embezzlement and fraud
Fraud takes as its object property that is in the possession of another person.
Embezzlement differs in that its object is another's property that is in one's own possession.
In other words, because fraud and embezzlement have different objects, they cannot both be established at the same time.
Embezzlement defense attorney
Embezzlement is a representative property crime, and it is quite intricate as a matter of legal doctrine.
Therefore, if you have filed a criminal complaint for embezzlement or have had one filed against you, we recommend consulting a criminal defense attorney.
