횡령
The prosecutor's appeal is dismissed.
1. In full view of the evidence that is consistent with the facts charged in the instant case, it can be acknowledged that the Defendant had the criminal intent of embezzlement at the time of arbitrarily consuming the lease deposit (hereinafter “the lease deposit of this case”) without settling the accounts of the distribution of profits, without taking account of the name of the lease deposit as stated in the facts charged in the instant case, which is the business property of the instant case.
2. Determination
A. The recognition of facts constituting an offense in a criminal trial ought to be based on strict evidence of probative value, which leads to a judge to have a reasonable doubt. Thus, in a case where the prosecutor’s proof fails to sufficiently reach the extent that such conviction would lead to the prosecutor’s above conviction, the determination should be made in the interests of the defendant even if there is suspicion of guilt, such as the defendant’s assertion or defense contradictory or uncomfortable dismissal.
(see, e.g., Supreme Court Decision 2010Do14487, Apr. 28, 2011). In addition, in a case where the first instance court rendered a judgment not guilty of the facts charged on the ground that there is insufficient evidence to exclude reasonable doubt after undergoing the examination of evidence, such as the examination of witness, in light of the fact that the criminal appellate court has the character as a post-trial trial even after deceiving the Defendant, and the spirit of substantial direct cross-examination under the Criminal Procedure Act, etc., the first instance court may raise probability or doubt as to the facts that
Even if it does not reach the degree of sufficiently resolving the reasonable suspicion caused by the first instance trial, such circumstance alone alone makes it difficult to prove the crime in the first instance judgment that there was an error of mistake of facts, and thus, cannot be found guilty of the charge (see Supreme Court Decision 2015Do11428, Feb. 18, 2016). (b)
The judgment of the court below in this case shall take full account of the circumstances in its judgment, and the background leading up to which the defendant and the complainant had engaged in the same business.