횡령등
All judgment of the court below shall be reversed.
Defendant shall be punished by imprisonment for a term of one year and two months.
1. Summary of grounds for appeal;
A. On June 27, 2012, when the Defendant received transfer of KRW 20 million from C to “B company’s account” (hereinafter “business entity account”), the Defendant was unaware of the part of the purchase price of the Lone Star Co., Ltd. the victim was paid. Although C did not have participated in embezzlement of the said money, the first instance court erred by misapprehending the fact and thereby convicted the Defendant by misapprehending the legal doctrine of the co-principal.
(B) The sentence sentenced by the first instance court to the defendant (five months of imprisonment) is too unreasonable.
(2) The prosecutor (not guilty part) conspired with C in collusion with C as a custodian for the total amount remitted as the purchase price of Lone Star Vehicles. However, the first instance court erred by misapprehending the legal principles and acquitted the Defendant about KRW 9,541,930 out of the said money.
B. Defendant (1) of the 2014No1901 case (A) did not instruct Defendant C, who is the Defendant, to receive a loan from Defendant C as security of G body Man-W vehicle, and the complaint filed by the Defendant is not false, nor did the Defendant file a complaint with the intent to have the Defendant be subject to criminal punishment.
Nevertheless, the second instance court sentenced the defendant guilty by misunderstanding the fact of the second instance.
(B) The second instance court added the part not included in the facts charged in the instant case to the facts charged ex officio, which affects the defendant’s right of defense by bringing an important change to the elements of the crime.
Nevertheless, the second instance judged that it was not prosecuted in violation of the principle of no accusation.
(C) The punishment sentenced by the second instance court to the defendant (six months of imprisonment) is too unreasonable.
(2) The above sentence imposed on the Defendant by the second instance of the Prosecutor is too unhued and unreasonable.
2. Ex officio determination
A. The ex officio reversal due to the misapprehension of legal principles as to concurrent crimes is made by the latter part of Article 37 of the Criminal Act.