A. Inasmuch as there is no consignment relationship between the Defendant and the victim on the management of each unauthorized board building (hereinafter “each building of this case”) as indicated in the lower judgment, the Defendant is not a person who manages another’s property, which is the subject of embezzlement, and the Defendant cannot be recognized as the intention of embezzlement.

Nevertheless, the judgment of the court below that found the defendant guilty is erroneous by mistake.

B. The sentence of the lower court’s wrongful assertion of sentencing is too unreasonable.

2. Determination

A. Inasmuch as the custody of property in the judgment of embezzlement refers to the actual or legal control over the property, the custody of the property in the judgment of misunderstanding of facts is to be based on the consignment relationship. However, it is not necessarily required to be established by a contract such as lending and borrowing of use, lease, delegation, etc., but also established by the management of affairs, customs, cooking, and good faith principle (see, e.g., Supreme Court Decision 2012Do16315, Dec. 12, 2013). Comprehensively taking into account the following circumstances revealed through records and arguments, the Defendant, the victim, or the victim’s wife E had no consignment relationship under an explicit contract between the Defendant and the victim’s wife E.

It is understood that, at least, E had the Defendant lease and manage each of the buildings of this case to a third party at the request of the Defendant.

In addition, even if not, there was a consignment relationship under the office management or the good faith principle with respect to the management of each building of this case and the custody of rent arising therefrom.

It is reasonable to see it.

In addition, according to the evidence duly adopted and examined by the court below, the defendant's assertion of mistake is sufficiently acceptable, as stated in the court below, since the defendant has embezzled that he would bring about a difference from E without obtaining permission.