However, the execution of the above punishment shall be suspended for two years from the date this judgment became final and conclusive.

On July 31, 2012, the Defendant leased 40,000,000 won of monthly rent of KRW 10,000,000 per month, 300,000 won per month, 4,000,000 won per month, 300,000 won per month, 3,000,000 won per month, and 40,000,000 won per month during storage at the said place around the end of October, 2012, and transferred the instant machinery to the victim’s mind, upon receiving KRW 40,00,00 from H at the said place around the end of October 2012.

Accordingly, the Defendant embezzled the property owned by the victim.

Summary of Evidence

1. Partial statement of the defendant;

1. Legal statement of witness G;

1. Examination protocol of the accused by prosecution;

1. Application of the investigation report (No. 6) Act and subordinate statutes;

1. Relevant Article 355 (1) of the Criminal Act, the choice of punishment for the crime, and the choice of imprisonment;

1. Judgment on the defendant's assertion of suspended execution under Article 62 (1) of the Criminal Act (see, e.g., partial deposit of money for the victim)

1. The alleged defendant's disposal of the instant machinery constitutes grounds for the elimination of illegality by deeming that the victim implied consent or ex post facto consent was obtained, and further, the defendant inevitably disposed of the instant machinery in order to prevent damage to the victim's return of the instant machinery, and constitutes grounds for the elimination of illegality.

2. Even if there was no actual consent of the victim, it can be acknowledged when it is anticipated that the victim would have naturally accepted the act in light of all objective circumstances at the time of the act, in view of all objective circumstances at the time of the act.

(See Supreme Court Decision 2005Do8081 Decided March 24, 2006). In light of the progress of the instant case, such as the victim’s embezzlement and the Defendant’s failure to return the machinery cost to the victim until the victim files a complaint against the Defendant, the implied consent between the victim and the Defendant to dispose of the machinery of this case or the presumed ex post facto consent.