횡령
The judgment of the court below is reversed.
Defendant shall be punished by a fine of 1.5 million won.
The above fine shall not be paid by the defendant.
1. The summary of the grounds for appeal is that the Defendant had a right to claim damages for a non-performance of 100 million won against the victim company or tort, and thus, the Defendant’s failure to return the price of goods settled by customers to the victim company for securing this right has justifiable grounds, and thus, the intent of unlawful acquisition cannot be recognized. Even if the intent of unlawful acquisition is recognized, such act of the Defendant constitutes an error in the law that has justifiable grounds, since it is based on legal advice of
Nevertheless, the judgment of the court below that held the defendant guilty is erroneous in misconception of facts and misapprehension of legal principles.
2. Determination
A. Relevant legal principles 1) Money received by a person entrusted with administrative affairs involving receipt of money from a third party for a delegating person based on the act is similar to money received by the delegating person for the purpose or purpose, and a person who belongs to and was delegated to the delegating person upon receipt of the money, barring any special circumstance (see Supreme Court Decision 2003Do3394, Sept. 26, 2003). “Refusal to return” under Article 355(1) of the Criminal Act refers to an act of expressing his/her intent to exclude the owner’s rights against the stored goods. Thus, in order to constitute embezzlement, the “Refusal to return” refers to an act of expressing his/her intent to exclude the owner’s rights. Thus, the fact that the custodian of another person’s property merely refuses to return the money, and the refusal to return should be deemed as the same as the embezzlement act. (See Supreme Court Decision 2002Do619, May 16, 2003).