특정경제범죄가중처벌등에관한법률위반(횡령)등
The judgment of the court below is reversed.
A defendant shall be punished by imprisonment for two years.
However, for three years from the date this judgment becomes final and conclusive.
1. Summary of grounds for appeal;
A. The summary of the Defendant’s grounds of appeal (1) Inasmuch as the Defendant did not have an intent to obtain unlawful acquisition, the lower court erred by misapprehending the legal doctrine on the intent to obtain unlawful acquisition of embezzlement, thereby finding the Defendant guilty of this part of the facts charged.
(2) The sentence imposed by the lower court on the Defendant of an unreasonable sentencing (a fine of KRW 100,000,000 per day, and a penalty of KRW 100,000 per day) is unreasonable.
B. The gist of the prosecutor’s grounds of appeal (1) Inasmuch as the misapprehension of the legal principles as to occupational embezzlement, and the mistake of fact-finding that the defendant has neglected the management rights of the O Co., Ltd. (hereinafter “O”), the defendant’s intent to obtain unlawful acquisition is recognized in light of the following: (a) the mother’s child did not engage in any special advisory activity; (b) the defendant withdraws the corporate fund under the pretext of false advisory activity; (c) the defendant consumeds the annual salary; and (d) the defendant’s mother was diagnosed as a dementia patient around the end of July 2010.
(2) The lower court determined that the Defendant’s act does not constitute a credit business even though the Defendant’s act constitutes a credit business under the Act on Registration of Credit Business, etc. and Protection of Finance Users (hereinafter “Credit Business Act”) and the Presidential Decree, which was conducted after September 1, 2005.
The lower court determined that the Defendant’s lending money to AM (hereinafter “AM”) appears to have the substance of the investment amount. If the investment amount refers to “investment”, the Defendant constitutes an “investment” and thus, constitutes a case where a credit business is registered under another person’s name as if the investor was not an investor. Therefore, the lower court is guilty by applying Articles 19(1)1 and 3(2)2 of the above Credit Business Act, which are recognized as identical to the facts charged, as such.