횡령
The prosecutor's appeal is dismissed.
1. Comprehensively taking account of the evidence presented by the prosecutor as to the gist of the grounds for appeal, the act of refusing to return the materials equivalent to KRW 17,095,50, the quantity of which is the 17,095,500 among the construction and temporary materials leased by the defendant from the complainant shall be deemed to have expressed an intention to exclude the owner's right to the stored materials. The court below found the defendant not guilty of the facts charged in this case, even though the defendant sufficiently recognizes the intent of embezzlement and illegal acquisition.
2. Determination
A. The summary of the facts charged in this case is the president of (State)B.
On January 15, 2016, the Defendant Company (State) entered into a lease agreement with the (State) Company of the Appellant, and (State) under the lease agreement, the construction was carried out at the “E New Construction Site in a substantial area of the Cheongju City.”
On November 30, 2016, the Corporation completed and the Defendant did not return construction materials equivalent to KRW 17,095,50, a quantity of the freight to the complainant, despite having to return construction materials according to the lease agreement, and rejected the complainant’s request for due return.
Accordingly, the Defendant embezzled construction materials equivalent to 17,095,50 won of the complainant.
B. According to the evidence duly adopted and examined by this court, such as the witness F’s statement and the statement of the present situation, the Defendant’s failure to return construction materials equivalent to KRW 17,095,500, as stated in the instant facts charged is recognized. (2) However, the prosecutor’s liability to prove the facts charged in a criminal trial is the prosecutor, and the conviction should be based on the evidence with probative value that leads to the conviction of the facts charged to the extent that there is no reasonable doubt by the judge. Therefore, if there is no such evidence, the Defendant is doubtful of guilt.