업무상횡령
All appeals by the defendant and the prosecutor are dismissed.
1. Summary of grounds for appeal;
A. Defendant 1’s misunderstanding of facts and misapprehension of legal principles) Of KRW 44 million deposited into the personal account under the name of the Defendant, as stated in the instant facts charged, KRW 15 million deposited from the victim F’s account, the remainder of KRW 29 million was deposited from G’s personal account. First of all, with regard to KRW 15 million deposited from the Defendant’s account of the victimized company’s personal account, the said amount was not deposited by the Defendant as the representative director of the victimized company, but managed the victimized company independently with the Defendant’s right to manage the victimized company.
Since G deposited, the Defendant is not “a person who keeps another’s property” as the principal agent of embezzlement.
In addition, the Defendant has a claim of 20 million won or more and a claim of 100 million won or more with respect to the damaged company. The Defendant could receive money from the victimized company in return for the transfer of KRW 15 million or more from the account of the victimized company. As such, the Defendant cannot be deemed as embezzlement by having received KRW 15 million from the account of the victimized company to the account of the Defendant.
B) From among the money deposited in the Defendant’s account, G paid out of KRW 29 million to the Defendant’s personal account, the amount to be paid by G to the victimized Company from October 6, 2009 to December 31, 201 is 186 million in total. G paid a total amount of KRW 1.239 billion to the victimized Company during the above period and deposited all of the money to be paid to G to the victimized Company. As such, G is not obliged to pay KRW 29 million to the victimized Company.
Therefore, G has a claim that much more than the amount of the above rent to the damaged company, so G deposited KRW 29 million out of the rent to be paid to the damaged company to the Defendant.
The said money can not be included in the amount of embezzlement.
2) The sentence sentenced by the lower court (six months of imprisonment, one year of suspended execution) is too unreasonable.