횡령
The judgment of the court below is reversed.
A defendant shall be punished by imprisonment for not less than eight months.
Provided, That the above punishment shall be imposed for two years from the date of the final judgment.
1. Summary of grounds for appeal;
A. Compared to misunderstanding of facts and misunderstanding of legal principles, around May 20, 2013, the amount of KRW 91 million deposited in the foreign exchange bank account under the name of D Co., Ltd. is owned by D Co., Ltd. (2) The Defendant is not a person who keeps the accounts in the name of D Co., Ltd. in relation to the victim.
3) Since the Defendant used and kept the above KRW 91 million for Company D, the Defendant did not have any intent to acquire unlawful profits to embezzled another’s property. B. The lower court’s imprisonment with labor for eight months is too unreasonable.
2. Determination
A. The defendant and the defendant's defense counsel at the original court's judgment on the assertion of mistake of facts, the above 1.A of the allegation of mistake of facts.
1) The court below rejected the above assertion in detail under the title "the judgment on the defendant's and defense counsel's assertion", which is "the judgment on the defendant's and defense counsel's assertion". In comparison with the above judgment of the court below, a thorough comparison with the records, the judgment of the court below is just and it is not erroneous in the misunderstanding of facts or misunderstanding of legal principles on the fraud in embezzlement, which affected the conclusion of the judgment.
Then, as to whether the defendant had a person in custody of another person's property in accordance with a consignment relationship with the victim, the custody of property in embezzlement means the situation in which the defendant has de facto or legal control over the property and the custody thereof should be based on a consignment relationship. However, it is not necessarily required to be established by a contract such as loan of use, lease, delegation, etc., but can also be established by business management, custom, cooking, and trust rules.
(see, e.g., Supreme Court Decision 2003Do3840, Sept. 23, 2003). The court below duly adopted it.