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Residential Edial Edial Edial Edial Edic ****

Attorney Park Young-young, Kim Hyun-gu, Park Jae-sik in charge

A defendant shall be punished by imprisonment for not less than two years and six months.

The prosecutor's appeal against the acquittal portion of the judgment below is dismissed.

(a) A prosecutor;

(1) misunderstanding of facts

The prosecutor initially instituted a charge of embezzlement of KRW 1.22 billion by the defendant, but partly accepted the defendant's and his defense counsel's assertion in the original trial, and changed the indictment by embezzlement of KRW 1.01,4910,000, which remains after subtracting KRW 28 billion among them.

However, the lower court found the Defendant not guilty of KRW 92,92,00,000,00 which was 92,000,000,000 as seen above, was included in KRW 28,000 that was reduced through the modification of the indictment, and thus, the lower court acquitted the Defendant of KRW 92,000,00

(2) Unreasonable sentencing

The sentencing of the court below (two years and six months of imprisonment) is too unhued and unfair.

B. Defendant

(1) misunderstanding of facts and misunderstanding of legal principles (the part guilty in the judgment of the court below which embezzled 460 million won in the amount of 460 million won)

(A) Of the deposited money of KRW 1.22 billion deposited with the Defendant and Kim 00, the money embezzled by the Defendant for personal consumption of KRW 462 million is limited to KRW 462 million, and the remaining money is used for the aforementioned transfer of clan clan clan for the establishment of public works costs, relocation costs, support costs for electronic family gathering and creation costs for creating Ppuri parks, subsidies for prison expenses, family-related expenses, and non-performance costs for clan clans, and thus, the above amount exceeds KRW 462 million, but the lower court did not constitute embezzlement. However, the lower court recognized that the Defendant embezzled KRW 922 million, which is the part of the lower judgment’s conviction of KRW 462 million. In so doing, the lower court erred by misapprehending the legal doctrine on embezzlement or by misapprehending the burden of proof as to the part of the embezzlement of KRW 462 million, which is part of the portion recognized by the Defendant.

B. unspecified facts charged

In the criminal facts of this case, only KRW 922 million, which is the total amount embezzled by the defendant, was stated in the criminal facts of this case, and each specific place of use and the amount of the relevant embezzlement are not specified, making it impossible to conduct the defendant's defense right.

(2) Unreasonable sentencing

The sentencing of the court below is too unreasonable.

2. Determination

A. Summary of the facts charged

From July 26, 2007, the Defendant, as the representative of the president of the member of the member clan*** on behalf of the president of the member clan, supervised the religious affairs, and then, on August 17, 2007, the Defendant: (a) on the deposit account of the member of the member of the member of the member clan in the Daejeon District Court, Daejeon District Court around August 17, 2007, the member of the member of the member of the member clan** * * * * 1.22,29 billion (hereinafter “the deposit of this case”) deposited by the Korea Land Corporation as the compensation for the administrative city for six parcels, and received the money for KRW 1.22 billion (hereinafter “the deposit of this case”). (b) on or around August 20, 2007, the Defendant then embezzled the above amount of KRW 1.22 billion from the original amount to the Kim 1.2 billion and then executed the remaining amount of litigation expenses for the purpose of 1.2 billion won and 2 billion won.

B. Judgment on misconception of facts and misapprehension of legal principles

The grounds for appeal in this part by prosecutors and defendants shall also be deemed to exist.

(1) Relevant legal principles

A prosecutor must prove that there is an act of embezzlement as an act of realizing the intent of unlawful acquisition. The evidence should be based on strict evidence with probative value that leads to a judge to a reasonable doubt, and if there is no such evidence, it should be determined as the interest of the defendant even if there is suspicion of guilt. If the defendant does not properly explain his/her whereabouts or use of money in his/her custody even though there is no money entrusted by him/her, it can be presumed that the defendant voluntarily consumed and embezzled it. However, if the defendant explains the whereabouts or use of money on the grounds that it is difficult to recognize the existence of the intention of unlawful acquisition, and if there are materials corresponding thereto, it cannot be recognized that the defendant withdrawn the deposited money from the intent of unlawful acquisition and embezzled it with the intent of unlawful acquisition (see, e.g., Supreme Court Decision 9Do949, Sept. 9, 194).

(2) Determination of the Prosecutor’s assertion (not guilty part)

As to the part of the charges of this case 92 million won, the record reveals that the defendant consistently supported the electronic family register from the veterinary museum to the trial of the political party, ** the defendant has asserted that the victim's clan has provided the money as the deposit money of this case (116 pages of the investigation record), ** the clan's federation is carrying out the electronic family register compilation work, ** * the clan's street origin expenses was installed in the Daejeon Ppuri Park on September 22, 2008, 100, 000 won was stated in the judgment of the court below 100 won, 00 won was submitted to the defendant to participate in the event of the establishment of the above clan (No. 1-1), 1-2 of the victim's clan, 0-2 of the victim's clan's clan's clan, 0-2 of the victim's clan, 000 won was provided with the evidence of the victim's clan, 000 won, 0-2 of the victim's clan.

In light of the aforementioned circumstances, it is difficult to exclude the possibility that the above KRW 92 million out of the deposited money of this case was used by the prosecutor for performing the duties of the clans in addition to the money except for the money in the facts charged through the changes in indictment, that is, the money used by the prosecutor for purchasing the land in the clans and for the costs of lawsuit. In addition, it is insufficient to prove that the defendant withdrawn the above money with the intention of unlawful acquisition (not guilty part) as to the facts charged of this part (not guilty part), so this part of the facts charged of this case is not proven.

In the same purport, the court below's determination of not guilty of this part of the facts charged is just and acceptable, and there is no error as pointed out by the prosecutor.

(3) Determination of the defense counsel's assertion (the guilty part of the judgment of the court below which contains 460 million won or more)

The defendant and his defense counsel at the court below asserted as the reasons for appeal of this case. The court below rejected the above assertion on the ground that the defendant and his defense counsel at the court below asserted as the reasons for appeal of this case, and 2.8 billion won used for the purchase of land of the defendant and Kim 00,000 won and 92 billion won won, less than 300,000 won, which were used for the purpose of carrying out the business of the clan as above, have not been ruled out to exclude the possibility of being used for the purchase of land of the defendant and the transmission of the defendant and 1.22 billion won, but it did not present specific data about the amount used by each consumption unit and its amount corresponding to the defendant's assertion, while it is difficult to view that the defendant's assertion that he spent the expenses of lawsuit, etc. constitutes litigation expenses that can be disbursed for the defendant's clan or paid expenses necessary for the performance of business of the victim's clan.

Examining the reasoning of the judgment below in comparison with records, the fact-finding and judgment of the court below are justified.

C. Whether the facts charged are unspecified

In the case of an inclusive crime, even though it is not specifically specified for each act forming part of the crime, the whole crime is specified if the time, termination period, method of the crime, frequency of the crime, the sum of the amount of damage, and the victim or the other party are clearly stated. In addition, since the facts charged in the indictment is required to limit the object of the trial against the court and facilitate the exercise of the defense right by specifying the scope of the defendant's words, it is desirable to clearly specify the facts, such as the time, place, method, etc. of the crime, as long as possible, it is desirable to specify the facts clearly as possible, but even if it is necessary, it may interfere with the institution and maintenance of the prosecution. Thus, it is sufficient to specify the time and place of the crime to the extent that it does not conflict with the time and time of double prosecution or prescription, and in the method, it is sufficient to determine the territorial jurisdiction, to the extent that it states the elements of the crime (see, e.g., Supreme Court Decision 97Do1126, May 29, 198).

The facts charged in the instant case are prosecuted by comprehensively combining each embezzlement of a defendant for a certain period of time and constituting a single crime. It is not clear that the specific user of each embezzlement and each embezzlement did not specify the specific user of each embezzlement and the amount of each embezzlement, but the change from the Defendant’s water fraud center to the trial in the trial. As such, it cannot be said that the specific user of each embezzlement and each embezzlement did not constitute a difficulty in defending the defendant, since the specific user of each embezzlement and the amount of each embezzlement were used as civil construction cost, public works cost, relocation cost, subsidies for the preparation of an electronic satisfaction book, subsidies for the installation of a ppuri park, subsidies for the auditor’s hospital expenses, family-related expenses, and expenses for the establishment of a ppuri park, and thus, the object of each embezzlement and each individual embezzlement are unclear.

D. Determination on the assertion of unreasonable sentencing

The crime of this case is a situation unfavorable to the defendant that the defendant still seems to be a member of the clan, although the victim's clan does not want punishment for the defendant, although he/she still appears to have been punished for the defendant in the clan.

However, the sentencing of the court below is too unreasonable considering the following facts: the defendant has no record of punishment except for the judgment of suspended sentence due to injury in 2009; the victim was not wanting to punish the defendant for the time when the defendant was in the trial; and other favorable circumstances such as the fact that the victim did not want to punish the defendant; and all other conditions of sentencing against the defendant.

3. Conclusion

Therefore, since the appeal by the defendant against the guilty part of the judgment of the court below is well-grounded, it is reversed pursuant to Article 364 (6) of the Criminal Procedure Act and it is again decided as follows. The prosecutor's appeal against the acquittal part among the judgment of the court below is without merit and it is dismissed pursuant to Article 364

Judgment which has been written in multiple times shall be rendered.

Criminal facts and summary of evidence

The records of the judgment of the court below are as follows.

Application of Statutes

1. Article applicable to criminal facts;

Article 3 (1) 2 of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes, Articles 356 and 355 (1) of the Criminal Act

1. Discretionary mitigation;

Articles 53 and 55(1)3 of the Criminal Act

Reasons for sentencing

[Scope of Punishment] Imprisonment from 1 year and 6 months to 15 years;

[Determination of Punishment] Embezzlement. 500 million or more but less than KRW 5 billion or less than KRW 5 billion

[Special Mitigation] Ad hoc Inspector

[Scope of Recommendation] Imprisonment of 1 year and 6 months to 3 years (Mitigation of Mitigation)

【Determination of Sentence】

The part concerning the determination of the above grounds for appeal is invoked.

Freeboard

Freeboard Kim Dong-dong

With respect to the portion, an appeal was not filed, and only the remaining 92 million won was acquitted.