변호사비용 등 소송비용을 교비회계에서 지출한 경우 사립학교법 위반죄와 업무상횡령죄가 성립하는지 여부

The core question in this case is whether disbursing revenues of school expenses for school-related litigation costs, such as attorneys’ fees, constitutes a violation of the Private School Act and occupational embezzlement. The mainstream trends in court trials expressed a negative view towards the disbursement of school expense funds for litigation costs, citing procedural reasons that school foundations constitute the litigant or the party to which litigation practice belongs, or that “litigation expenses” fall under the corporate budget expenditure categories under Article 15-2(1) [Attachment 2] of the Private School Financial Accounting Standards for Private School Institutions. The rationale concerning the appropriation of school expense revenues, based on the legal doctrine established by the Supreme Court, is characterized as corresponding the establishment of a violation of the Private School Act to the establishment of occupational embezzlement. Views in rebuttal to the mainstream trends cite the reality where schools function as an independent organization and an entity distinguished from school foundations; the emergence of a type of legal dispute necessitating a direct response from schools and a realistic and substantive need for the disbursement of litigation costs; the disparity between trial practice and a university’s accounting practice that is based on the education ministry’s guidance; the concerns over aggravation of punishment as a result of the establishment of a violation of the Private School Act associated with the establishment of occupational embezzlement; and that the unequivocal prohibition of the disbursement of school expenditure revenues for litigation costs discourages schools from coming up with appropriate response, thereby causing the damage to fundamental functions of school education. To examine the main point at issue in the subject case, this Article first looks into the purpose of the provisions of the Private School Act and their specific content. To discuss whether litigation costs, such as attorneys’ fee, can be disbursed from revenue that belongs to the accounts of school expenses and the permissible scope of disbursement, the provisions regarding the legislative purpose of the Private School Act; the purpose of separating school foundations and school accounting and the purpose of prohibiting the appropriation of the accounts of school expenses to other accounts; the appointment and demotion of teachers of private schools; and the assets and accounting of school foundations, as well as the details of relevant court judgments must be considered. This Article continues to examine the essence of embezzlement and the meaning of an intent to fraudulently deprive the rightful owner of their property or funds and convert it for personal illicit gain; the spectrum of legal doctrines regarding whether embezzlement is established for the use of the entrusted property reserved for a specific purpose and the degree of proof required to substantiate the criminal intent to misappropriate; the development of legal doctrines concerning the misappropriation of revenue designated for school expenses and the results of applying those legal doctrines; the attitude assumed by previous court decisions on the disbursement of school expense revenue for litigation costs, such as attorneys’ fee; and the evolution of the education ministry’s guidance related to the disbursement of litigation costs. The Article proceeds to examine three possible views regarding the gist of the subject case, which either (1) rejects the disbursement of litigation costs from funds in school expenditure accounts and maintains the legal doctrine regarding the criminal intent to misappropriate required for the establishment of occupational embezzlement; (2) specifically sets forth the standards by which certain items are subsumed under Article 13(2) of the Enforcement Decree of the Private School Act regarding litigation costs and maintains the legal doctrine regarding the criminal intent to misappropriate required for the establishment of occupational embezzlement; or (3) denies the disbursement of litigation costs from funds in school expenditure accounts, but modifies the legal doctrine established by the Supreme Court to make a separate determination on the establishment of the crime of embezzlement, presents rationales for each view, and examines their strengths and weaknesses. The subject case adhered to the preceding legal doctrines that determined the payment of revenue in school expenditure accounts should be decided depending on whether that disbursement of revenue is directly necessary for school education. It endorsed the direction of View (2) to some extent and suggested the standards for determination of permissible disbursement of litigation costs and detailed elements of consideration, stretching a little from the perspective of View (2). The subject case then reaffirmed the incumbent legal doctrine, which held that the crime of occupational embezzlement is established if the revenues of school expenses of private schools are used for purposes other than lawful expenditures from the accounts of school expenses, as it would be equivalent to actualizing the criminal intent to misappropriate. It is inappropriate to understand the subject case as an attempt to give broad permission to the disbursement of school expense funds for litigation costs on the grounds that it is related to the management of schools or education. It must be noted that the legal doctrine of the subject case is to set forth the requirements for the disbursement of school expense revenues for litigation costs to be considered as legitimate disbursement, which require such disbursement to show the “direct relevance of a legal dispute subject to the disbursement of litigation costs to items of expenditures under each subparagraph of Article 13(2) of the Enforcement of the Private School Act” and the “direct necessity for the prevention of the education provided by the pertinent school from suffering damage to its fundamental function”, thereby strictly limiting the scope of permissible disbursements of school expense revenues for litigation costs.