[업무상횡령,절도][공1989.8.1.(853),1102]
Requirements and method for the establishment of larceny
Since larceny is established that the criminal moves the property possessed by another person with the intention of unlawful acquisition in his/her own control against the will of the possessor, it is necessary to clarify who is in his/her custody in case the object of larceny is cash and to clarify who is in his/her custody and to see the process of moving the property under his/her own control against the will of the custodian.
Article 329 of the Criminal Act
Defendant
Defendant
Attorney Park Jong-soo
Jeonju District Court Decision 88No52 delivered on December 14, 1988
The judgment of the court below is reversed, and the case is remanded to the Jeonju District Court Panel Division.
According to the reasoning of the judgment of the court of first instance cited by the judgment of the court below, the court below recognized that the defendant brought 1,194,323 won out of the sales price of alcoholic beverages possessed by the non-indicted Gak-ri in the office of Shin Tae-ri 197 of Shin Tae-ri, Shin Tae-dong, Tae-dong, North Tae-do, to the 31st of the same month from July 26, 1984, without the consent of the partners, and (2) on August 1, 1985, brought about 170,000 won from the sales price of alcoholic beverages at the place as stated in the preceding paragraph, and (3) in the same manner as stated in the preceding paragraph, brought about 130,000 won out of the sales revenue of alcoholic beverages at the same time and held that it constitutes larceny under Article 329 of the Criminal Act.
However, larceny is established that the criminal moves the property possessed by another person with the intention of illegal acquisition under his control against the will of the possessor.
Therefore, in this case, in order to recognize that the defendant's act constitutes a crime of larceny, it is necessary to clarify who takes custody of the cash that is the object of larceny and to explain the process that the defendant moves the cash to his own control against his will.
However, the judgment of the court below does not contain an explanation of the custodian in the criminal facts described in paragraphs (1) and (2), (3), and all of the statements in paragraphs (1), (2) and (3) do not indicate that the defendant moves the cash under his control by any means against the will of the custodian in cash.
In addition, according to the records, according to the court below's statement of Lee Jong-young, Dong Dong-dong Kim, Dong Kim Dong-dong, and Dong Kim abuse, which was stated as the evidence supporting the facts charged of this case, the defendant received money from the Dong-Jin-Jin-Jin-Jin-Jin-Jin-Jin-Jin-Jin-Jin-Jin-Jin-Jin-Jin-Jin-Jin-Jin-Jin-Jin-Jin-Jin-Jin-Jin-Jin-Jin-Jin-Jin-Jin-Jin-Jin-Jin-Jin-Jin-Jin-Jin-Jin-Jin-Jin-Jin-Jin-Jin-Jin-Jin-Jin-Jin-Jin-Jin-J, 50, 129, 159, 159, 1, 19, 323, as stated in the indictment of this case, the defendant did not bring money to the joint manager of this case.
If so, the judgment of the court below is erroneous in the misapprehension of the legal principle as to elements for larceny, or there is a brut to recognize larceny without any evidence, and there is a ground for appeal pointed out this point.
The judgment of the court below is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices.
Justices Kim Yong-sung (Presiding Justice)