횡령
The judgment of the court below is reversed, and the case is remanded to the Seoul Central District Court Panel Division.
The grounds of appeal are examined.
1. The principal agent of embezzlement shall be a custodian of another’s property, and the custody here means possession of property through a consignment relationship. Thus, in order to constitute embezzlement, there should be legal or de facto consignment relationship between the custodian of the property and the owner of the property (or the other principal owner).
(2) On February 26, 2015, the lower court, in light of the following circumstances, acknowledged that the Defendant voluntarily withdrawn money and embezzled money while keeping the funds deposited in the instant account owned by the victimized Company, and recognized the intent of embezzlement and illegal acquisition.
(1) Even if the defendant opened the instant account to operate an independent business with a victimized company, as long as he/she concludes a service contract under the name of the victimized company and receives the payment in the instant account in the name of the victimized company, his/her funds shall revert to the victimized company, and the defendant shall have the authority to manage funds necessary for the operation of the victimized
② As the Defendant retired from the representative director, the authority over the account and funds of this case, which had been the representative director, was extinguished as well.
③ With knowledge of the fact that the Defendant lost the status of representative director, the intent of embezzlement and the intention of unlawful acquisition is recognized as long as the Defendant withdraws the funds of the victimized company while managing the passbook of this case and the cash card in custody, and used them for other purposes without permission of the victimized company.
3. However, the above determination by the court below is difficult to accept for the following reasons.
The judgment below
The reasoning and the evidence duly admitted and examined by the court below reveal the following facts.
(1) A defendant and D shall have 50:50 shares and work as joint representative director of a victimized company.