특정경제범죄가중처벌등에관한법률위반(사기)등
All of the first and second original judgments (excluding the part of compensation order) shall be reversed.
A defendant shall be punished by imprisonment for four years.
1. Scope of the judgment of this court;
A. Of the facts charged in the instant case, the first instance court acquitted the Defendant of the crime of occupational embezzlement (related to paragraph (a) of Article 2 of the Criminal Act at the time of original adjudication) following the creation of the first collateral security (related to paragraph (a) of the same Article) that “In the course of the business custody of the said company for the said company, the Defendant received KRW 200 million from the said account in substitution of KRW 50 million on February 5, 2016 and embezzled KRW 20 million on behalf of the said company” (the part in which the Defendant alleged that the Defendant paid KRW 20 million to W with the relevant deliberation costs), and did not separately pronounced the Defendant of the crime of occupational embezzlement of KRW 43,521,000 as indicated in the lower judgment, so long as the Defendant was found guilty of the crime of occupational embezzlement of KRW 43,521,000,
The prosecutor did not appeal against this, and the defendant appealed against the remaining part of the first instance judgment excluding the acquittal part of the above reasons. Thus, the acquittal part of the above reasons should be judged to have been exempted from the object of public defense between the parties in accordance with the principle of no appeal by the principle of no appeal.
(see, e.g., Supreme Court Decision 90Do2820, Mar. 12, 1991). Therefore, the conclusion of the first judgment of the lower court with respect to the acquittal portion of the above reasons is followed, and this court does not decide separately.
B. Where an appeal against a conviction is filed, the order for compensation shall be transferred to the appellate court along with the accused case (see Article 33(1) of the Act on Special Cases Concerning the Promotion, etc. of Legal Proceedings). According to the records of this case, although the Defendant filed an appeal against the judgment of the second instance, the Defendant did not state the grounds for appeal regarding the part of the order for compensation among the judgment of the second instance in the petition of appeal and the statement of grounds of appeal submitted by the Defendant, and even if ex officio
Therefore, the compensation order part of the second judgment shall be maintained as it is.
2. Summary of grounds for appeal;
A. Of the first judgment of the lower court, mistake of facts or misapprehension of legal principles.