A. In a case where a victim of a mistake of fact requests the Defendant to develop the vehicle for accusation, he/she paid KRW 300 million in return. The Defendant, who did not pay it, sold the vehicle for accusation that was manufactured at the victim’s request and kept in custody, and 5.7 million won borrowed from the injured party’s development cost. Thus, the crime of embezzlement is not established.

B. The sentence sentenced by the lower court (hereinafter “the penalty”) is too unreasonable and unfair.

2. Determination

A. When considering all the following circumstances recognized by the lower court’s duly adopted and examined evidence at the lower court’s determination as to the assertion of mistake of facts, the Defendant’s embezzlement of a motor vehicle for accusation kept by the victim as stated in the lower court’s holding, and the fact-finding of KRW 5.7 million can be fully recognized. Therefore, the allegation of mistake of facts is without merit.

1) The victim consistently from the investigative agency to the court of the court below, while manufacturing and keeping the vehicle in charge of filing a complaint with the Defendant who received KRW 18 million from the injured party, and transferred it to another person without knowledge. The Defendant borrowed KRW 5.7 million in the name of purchasing the vehicle in charge of filing a complaint, decided to use it and repay only one month, and stated the specific fact of damage.

2) In the lower court’s judgment, the Defendant sold the vehicle in which a victim filed a complaint with the consent of the victim to cover the development cost of KRW 300 million, and agreed to cover the development cost of KRW 5.7 million borrowed from the victim.

“Having asserted”.

However, the Defendant used 5.7 million won as the engine purchase price in the first investigative agency, as claimed by the victim, with regard to the above borrowed money.

Recognizing that the relevant receipt was submitted, the time when the said receipt was prepared and the time when KRW 5.7 million was remitted is different.