The point of this Supreme Court Cases are (1) Does the accused’s act putting up maximal collateral constitute a charge of embezzlement? (2) Should the act of disposal after the embezzlement be punished as an independent crime?

In my relationship with breach crime of trust, the embezzlement has a character as the special law. Therefore, where the embezzlement is concerned, it needs to be strictly interpreted. If the accused’s act has not reached the level to trespass on some one’s proprietary rights, the establishment of embezzlement should be denied and the breach crime of trust should be reviewed.

On the one hand, the term “Unpunishable Act After Crime” means that the act after crime (the post act) is unpunishable whenever the punishable crime (the previous act) is committed and it contains a whole illegality of the post act.

In this case, nevertheless if the post act is punished as an independent crime, it occurs the problem of the double risk necessarily. On the other hand, the illegality of the post act exceeds the previous one, it is no more unpunishable.

In the several criminal cases, the “Unpunishable Act After Crime” is mentioned in the property crimes like embezzlement, fraud, malpractice, and theft. In the criminal investigation and the trial, the “Unpunishable Act After Crime” could influence a judgment of the court, an arraignment of the prosecutor, a statute of limitations, an appeal, and so on.

Eventually, the concept of the “Unpunishable Act After Crime” prevents a suspect from the double punishment or double risk. But it may cause harm to substantial criminal justice because unpunishable act after crime shall be exempted from legal sanctions even though it should be a punishable crime in a different circumstances. So it is important that establish a elaborate standard to define if a certain act is an unpunishable act after crime or not.

[대상판결] 대법원 2013. 2. 21. 선고 2010도10500 전원합의체판결(횡령)
 [평 석]
  Ⅰ. 대상판결의 의미와 한계
  Ⅱ. 죄의 성립에 관한 판단
   1. [다수의견]의 논리
   2. 피고인의 제1·제2 근저당권설정행위에 대한 평가
   3. 사후행위들(제2 근저당권설정행위 및 매각행위)에 대한 평가
   4. 소결 ― 횡령죄와 배임죄의 관계 정립에 대한 소고
  Ⅲ. 죄수 관계에 관한 판단
   1. “기수에 이른 후 종국적 법익침해의 결과가 발생하기 전”의의미
   2. 수죄의 관계 및 처리방식에 관한 재검토
   3. 위 판단과정에 따른 사안의 평가
  Ⅳ. 결론 ― ‘호미’로도 충분하다.
  [참고문헌]
  [Abstract]

• 김봉수(Professor, School of Law, Chonnam National University, Ph.D in Law.) | Kim, Bong-Su