A. In fact, the Defendant merely entered into a general sales contract for supplying goods to the victims upon request from the injured party, but did not enter into a sales contract for entrustment with the injured party, and thought that the goods purchased under such contract were the goods of the principal at the time of disposal of the goods, there was no intention of embezzlement.

B. In light of the fact that it was difficult for the criminal defendant to know that the goods purchased from the injured person, not a legal expert, are owned by the truster in the internal relationship, the sentence of the court below that sentenced the fine of KRW 3,000,000 is too unreasonable.

2. Determination

A. As the essence of the judgment on the assertion of mistake of facts lies in the purchase or sale of goods under another person’s own name and the receipt of remuneration, and the name and calculation are separated. Thus, whether a contract constitutes a general sales contract or a consignment sales contract should be determined with emphasis on its substance regardless of the name or formal language of the contract (see Supreme Court Decision 2005Da6297, May 29, 2008, etc.). Meanwhile, the ownership of the consigned goods in the consignment sale is the delegating, and the sales proceeds shall be attributed to the truster upon receipt of the ownership. Thus, barring any special circumstance, the crime of embezzlement shall be established if the commission agent arbitrarily uses the consigned goods or the sales proceeds thereof (see, e.g., Supreme Court Decision 2012Do16191, Mar. 28, 2013). The following circumstances acknowledged by the court below lawfully adopted and investigated by the court below, namely, the following circumstances: ① the victim engaged in trade in the name of a large number of items as the representative director, and the victim engaged in Korea.