특정경제범죄가중처벌등에관한법률위반(횡령)
The prosecutor's appeal is dismissed.
1. Summary of Reasons for Appeal: An agreement entered into between the accused and the injured party on the basis of misunderstanding of facts or misunderstanding of legal principles (hereinafter “instant agreement”) specifically provides for their respective investment ratio and business execution methods, so the accused and the injured party shall be deemed to be in the same business relationship. The money kept by the accused shall be deemed to be the joint business operator under the said agreement, as the purpose and purpose of use are determined. Thus, the Defendant shall be deemed
On the contrary, the court below erred by misapprehending the legal principles or misapprehending the fact that the defendant was not in the status of a person who keeps another's property.
2. The lower court determined that the evidence submitted by the prosecutor alone is difficult to view the instant agreement as a partnership agreement under the Civil Act, and it is insufficient to recognize that the Defendant and the victim were in the same business relationship, and otherwise, there is no evidence to prove that the Defendant was in the custody of KRW 2,607,352,000 for the victim as the facts charged.
The prosecutor asserts that the money of this case, which the victim transferred to the defendant, was used only for the completion of the building in accordance with the agreement of this case, and that the purpose and purpose of the use of the money was determined and entrusted, in addition to the grounds stated in the judgment below.
However, Article 8(3) of the instant arrangement only provides that “If the victim is performing construction works in compliance with the process after confirming the details of the supervision report following the progress of construction works, the defendant shall be paid the construction amount, and there is no limitation on the place of use of the construction amount paid.”
It is difficult to view that the victim's legal statement of the court below alone was entrusted with the purpose and purpose of the victim's transfer money to the defendant only for the completion of the building.