횡령
The prosecutor's appeal is dismissed.
1. The summary of the grounds for appeal (the factual errors and misapprehension of legal principles) ① The victim, together with the defendant, has delivered 25 million won in the name of the down payment to the defendant for the purpose of jointly running the unregistered pre-sale business of the share in this case and has intervened in the overall business, so the relationship between the victim and the defendant constitutes internal partnership.
(2) It is difficult to view the relationship between the Defendant and the victim as an internal cooperative.
Even if the victim delivered money to the defendant is the money that has been entrusted with the purpose or purpose specified.
Therefore, the defendant's arbitrary use of the down payment returned by the cancellation of the contract for the share sale of this case for the internal partnership or the victim constitutes embezzlement.
Nevertheless, the lower court erred by misapprehending the facts charged against the Defendant or by misapprehending the legal doctrine, which affected the conclusion of the judgment.
2. Around November 2014, the Defendant, at the law office of the fourth floor victim C of the 4th floor of the Yansan-gu Seoul Special Metropolitan City, the Defendant paid the victim and the “2/7 percent of the E’s share out of the 2076 square meters prior to the 2076 square meters prior to the Yansan-gu Seoul Special Metropolitan City E, with the victim’s funds, paid the purchase and sale deposit of KRW 24 million, and immediately divided the profits accrued from the resale to other persons.
On December 2014, the Defendant, who decided to purchase the above shares, has renounced the purchase and has returned KRW 19 million out of the down payment to the victim, and embezzled the said shares by arbitrarily consuming it for living expenses, etc. while being kept for the victim.
3. Determination
A. The judgment of the court below is based on the legal principles as stated in its holding, and even if the defendant bears the down payment in the process of purchasing the instant shares, it is possible that the defendant bears the obligation to return unjust enrichment or to return loans and investments in the position of the trustee.