업무상횡령
The judgment of the court below is reversed.
Defendant shall be punished by a fine of KRW 7,000,000.
The above fine shall not be paid by the defendant.
1. Summary of grounds for appeal;
A. Legal doctrine 1) The judgment on the charge of violating the Political Fund Act of the defendant, which is identical to this case and basic facts, became final and conclusive.
2) Although the instant case could be prosecuted together with the offense of violating the Political Fund Act, it would be an abuse of the prosecution’s power to have the prosecution subject to double indictment.
B. The sentence sentenced by the lower court (two years of suspended sentence in six months of imprisonment) is too unreasonable.
2. Determination
A. Determination of the misapprehension of the legal doctrine’s assertion 1) Determination of the same factual basis should be made based on the same factual basis as the facts charged or the facts charged during criminal proceedings.
This cannot be understood only from the perspective of the identity of pure factual relations. In addition to the Defendant’s act and natural and social factual relations, the basic factual relations ought to be determined by taking into account the normative elements (see, e.g., Supreme Court Decision 93Do2080, Mar. 22, 1994; Supreme Court Decision 2005Do9678, Mar. 23, 2006). In light of the above legal doctrine, the crime of embezzlement is one of the legal interests protected by the individual, while the violation of political fund law is one of the legal interests protected by the national legal interests.
In addition, the crime of embezzlement is established when the installment savings in the church fund is withdrawn in cash after cancelling the installment savings in cash, while the crime of embezzlement is established when the cash withdrawn is delivered to the other party. As such, the time of the establishment of the two crimes is different not only from the time of the establishment of the two crimes, but also the elements of the two crimes and the nature of the two crimes are different.
Therefore, since the basic facts of the two crimes cannot be deemed to be substantially identical, the final judgment on the violation of the Political Fund Act does not affect the facts charged in the crime of embezzlement of this case.
. the defendant's objection.