횡령
The defendant's appeal is dismissed.
1. Summary of grounds for appeal;
A. Since the Defendant was temporarily unable to pay rental fees to the victim, and thereafter returned the instant vehicle to the victim, there is no intention of embezzlement as well as there is no intention of illegal acquisition.
B. The lower court’s sentence of unreasonable sentencing (six months of imprisonment, two years of suspended sentence, two years of social service, 45 hours of imprisonment) is too unreasonable.
2. Determination
A. “Refusal of return” under Article 355(1) of the Criminal Act regarding the assertion of mistake of facts refers to an act of expressing intent to exclude the owner’s right against the stored goods. As such, in order to constitute embezzlement, the “Refusal of return” is insufficient merely by the fact that the custodian of another’s property refuses to return the goods, and such refusal of return should be deemed to be the same as the embezzlement, taking into account the grounds for refusal of return and the subjective intent.
(see, e.g., Supreme Court Decisions 2002Do619, May 16, 2003; 98Do126, Jul. 10, 1998). In addition, in the crime of embezzlement, an intent to acquire illegal property refers to an intention to dispose of another person’s property, such as his/her own property, in breach of his/her duty to promote his/her own interest or a third party’s interest, and thus return, reimburse, and preserve it later.
Even if there is no obstacle to recognizing the intention of illegal acquisition.
(See Supreme Court Decision 2004Do5167 Decided November 10, 2006). The following circumstances acknowledged by the evidence duly adopted and examined by the court below, namely, ① the Defendant entered into a contract to lease a F car at the above D office on November 6, 2009 from the victim Co., Ltd. to KRW 3,250,000 per month in the above D name, and received the said car. ② The above contract Section 2 of the above contract: (a) if the vehicle rent is overdue for more than two months from the designated date, the victim Co., Ltd. shall be forced to recover the vehicle immediately.