A defendant shall be punished by imprisonment for six months.

However, the above punishment for a period of two years from the date this judgment became final and conclusive.

A. Fact-misunderstanding and misapprehension of the legal doctrine, which was kept in the account in the name of the defendant

200 million won (hereinafter “the instant money”) corresponds to the amount received by the victim E from the gas station supplier, etc., who is the purchaser, for the oil payment, etc., due to the violation of the Punishment of Tax Evaders Act, the Act on the Aggravated Punishment, etc. of Specific Crimes, the Regulation and Punishment of Concealment of Criminal Proceeds, etc., and constitutes an object for which benefits were paid due to an illegal cause, and thus, the ownership belongs to the Defendant. The victim cannot seek the return of the said amount to the Defendant, and the crime of embezzlement is not established against the Defendant.

Nevertheless, the judgment of the court below which found the defendant guilty is erroneous in the misunderstanding of facts and legal principles.

B. The punishment of the lower court (six months of imprisonment) is too unreasonable.

2. Determination

A. As to the assertion of misunderstanding of facts and legal principles, Article 746 of the Civil Act provides that a person who paid an asset on account of an illegal cause may not claim the return of the benefit. The person who paid the benefit cannot claim the return of unfair benefit to the other party on the ground that the act was legally null and void, as well as that the person who paid the benefit is entitled to claim the return of the benefit.

Since a claim for return based on ownership cannot be filed, the ownership of the thing eventually belongs to the party to whom the benefit was paid (see Supreme Court Decision 79Da483 delivered on November 13, 1979, Supreme Court Decision 99Do275 delivered on June 11, 199). In addition, there is an “illegal” under Article 746 of the Civil Act.

In order to do so, not only violates good morals and other social order in light of the content, nature, purpose, or oil, etc. of the act which caused the benefits, but also it is rather to require the return of the benefits, although the benefits were paid in violation of the due process laws and regulations.