업무상횡령
The judgment of the court below is reversed.
A defendant shall be punished by imprisonment with prison labor for four months.
However, the period of one year from the date this judgment becomes final and conclusive.
1. The sentence imposed by the court below on the defendant (four months of imprisonment) is too unreasonable.
2. While the defendant entered into a partnership contract with the victim and operated Smarket, the crime of embezzlement of KRW 350 million is not weak.
However, in light of the following circumstances: (a) the Defendant recognized the Defendant as committing a crime and divided the wrong facts; (b) the victim does not want the punishment against the Defendant by mutual agreement with the victim; (c) the victim was detained for two months in the instant case; (d) the victim has an opportunity to reflect; (e) there is no previous conviction above the suspension of execution; and (e) the detention of the Defendant is likely to involve excessive difficulty for his family members; and (e) other circumstances, including the Defendant’s age, sex, environment, motive, means and consequence of the crime; and (e) the circumstances after the crime, etc., the sentence of the lower court is somewhat unreasonable.
3. In conclusion, the judgment of the court below is reversed in accordance with Article 364(6) of the Criminal Procedure Act on the grounds that the defendant's appeal is with merit, and the judgment below is ruled again after pleading as follows.
[Judgment of the court below] The facts constituting a crime and the summary of evidence recognized by this court are identical to the facts stated in each corresponding column of the court below's judgment. Thus, they are quoted as they are in accordance with Article 369 of the Criminal Procedure Act.
Application of Statutes
1. Relevant provisions of the Criminal Act and Articles 356 and 355 (1) of the Criminal Act, the choice of punishment for the crime, and the choice of imprisonment;
1. The former part of Article 37 of the Criminal Act, and Articles 38 (1) 2 and 50 of the same Act, which aggravated concurrent crimes;
1. Article 62 (1) of the Criminal Act on the suspension of execution ( considered as favorable circumstances in determining the grounds for the above appeal);