횡령등
The judgment of the court below is reversed.
A defendant shall be punished by imprisonment with prison labor for up to six months.
1. Summary of grounds for appeal;
A. As to the embezzlement of misunderstanding the legal principles of Defendant (misunderstanding of legal principles and misunderstanding of sentencing), it cannot be deemed that a consignment relationship is established solely on the fact that the Defendant lent the passbook in the name of the Defendant to the victim, and the claim for return is not recognized as an illegal cause.
Therefore, the lower court found the Defendant guilty of the facts charged, despite the fact that the Defendant could not be deemed as a person in custody of the victim’s property.
2) The punishment sentenced by the lower court (four months of imprisonment) is too unreasonable.
B. The sentence imposed by the prosecutor (unfair sentencing) by the lower court is too unhued and unreasonable.
2. Judgment on the misapprehension of the legal principle of the defendant
A. The relevant legal doctrine 1) The custody in the crime of embezzlement and the consignment relationship refers to the possession of property in accordance with the consignment relationship. As such, in order to constitute the crime of embezzlement, there is a legally or de facto consignment relationship between the custodian of property and the owner of property (or the owner of other principal rights).
Such consignment trust relationship is not only based on a contract such as usage lending, lease, delegation, etc., but also may be established based on administrative management, customs, cooking, and good faith principle. However, in light of the essence of embezzlement, a fiduciary relationship is reasonable to determine that the fiduciary relationship is based on trust worth protecting another person as embezzlement (see Supreme Court Decision 2014Do692, May 19, 2016). The reason why another person’s property is preserved for embezzlement does not necessarily need to be due to the owner’s consignment (see Supreme Court Decision 84Do2644, Sept. 10, 1985). In embezzlement, the term “storage” refers not only to cases where the property is substantially controlled, but also to cases where control and disposition is possible under the law.