업무상횡령등
All appeals by the defendant and the prosecutor are dismissed.
1. Summary of grounds for appeal;
A. Defendant 1 had the intent and ability to repay the money borrowed from the victim H at the time of September 20, 2012.
On November 23, 2012, two months after the Defendant was dismissed from the president of F, a self-supporting foundation (hereinafter “F”), the Defendant lost a substantial portion of the ability to repay the borrowed money to the victim, and was difficult to predict at the time of borrowing the loan. As such, the Defendant did not intend to obtain fraud.
Since the defendant borrowed funds to raise F's operating capital, it is necessary to consider F's intent and ability to repay the borrowed funds, which is the subject of actual attribution of the borrowed funds.
The loan interest of this case is 24% per annum, and the lender was aware that the victim was the next owner that the defendant's credit standing was not good.
The lower court erred by misapprehending the fact on the criminal intent of deception and deception.
2) The sentence sentenced by the lower court (ten months of imprisonment and two years of suspended sentence) is too unreasonable.
B. Prosecutor 1) Using F’s borrowed money as a misunderstanding the fact of occupational embezzlement for satisfaction of an individual’s obligation constitutes occupational embezzlement.
Considering the fact that the defendant did not use the F's funds as operating funds after he reverted personal funds to F, the defendant did not have any intention to use the F's funds for the repayment of his bonds at the time of using the F's funds.
As such, the crime of embezzlement is established.
The lower court erred by misapprehending the fact regarding the criminal intent of occupational embezzlement.
2) The amount that the Defendant received from the representative director R of the O Co., Ltd. P and Q Co., Ltd. (hereinafter “ Q”) to the misunderstanding of the facts as to each of the property in breach of trust does not constitute a loan.
The defendant borrowed money from O (10 million won out of KRW 500 million) and Q (200 million out of KRW 500 million).