배임죄와 횡령죄의 관계 - 특히 기업기밀문서유출의 형사책임에 관하여 -

The Korean Supreme Court (KSC) passed a sentence of Embezzlement, where the accused sent the secret files of his company to his own email and saved it in his own hardisk. He said in his sentence, that he caused the financial risk of the company through the unapproved flowing out the secret copy files of his company. This sentence would be better -in my opinion-, if he passed a sentence of misappropriation, instead of Embezzlement. The reasons why are as follows: 1. The act of E-mailing and saving secret copyfile to another can’t be involved to financial official act of embezzlement according to Korean Penal Code. 2. Copy file is regarded as an original file, according Korean Penal Code. 3. Such an act must be understood as misappropriation. Sending a file through email is an art of misappropriation of use, which should belong to misappropriation, but not to embezzlement. 4. The relation between embezzlement and misappropriation is same as the general code and special code. Therefore misappropriation is always prior to embezzlement, if these two crimes occur at the same time. Nowadays are Flowing out of the secretcopyfiles in the companies step by step increasing and it is very important to prevail the secret of company from flowing out. This study can help to solve such judicial conflicts.