At the time of double remittance of KRW 12,537,50 to the Defendant, the Defendant was aware of the fact that the remittance was made as above. As long as the Defendant voluntarily consumeded KRW 12,537,500, the crime of embezzlement is established. Nevertheless, the lower court acquitted the Defendant, and the lower court erred by misapprehending the legal principles.

2. Summary of the facts charged

On July 23, 2013, the Defendant: (a) was in custody of KRW 12,537,500, more deposited vehicle loan money from the company bank account (Account Number omitted) in the name of the Defendant due to computer error from the point of Ilsan, Inc., the Defendant embezzled the entire amount of the vehicle loan money from the end of July 2013 to the end of September of the same year by consuming it by the operation expenses of his/her father’s care.

3. The judgment of the court below

Only the evidence submitted by the prosecutor alone is insufficient to recognize that the defendant voluntarily consumeds it with the knowledge of double remittance, and there is no other evidence to acknowledge the criminal intent of the defendant.

4. Judgment of the court below

A. The following circumstances acknowledged by the evidence duly adopted and investigated by the lower court (i.e., (i) the victim remitted twice to the Defendant on or around July 23, 2013; (ii) the Defendant informed the Defendant of the fact that the victim was sent twice to the Defendant on or around September 22, 2013; (iii) the Defendant engaged in financial transactions using the same method after July 23, 2013 when the victim transferred double phone calls; (iv) the amount of money deposited into the Defendant’s account even after double transfer; and (v) the balance of the account after double transfer was known to the Defendant that the Defendant had been consumed on or around July 23, 2013; and (v) the amount of double transfer was not 12,537,00 won; and (v) the amount of double transfer was 28,671 won after double transfer; and (v) the Defendant had been aware that the balance was 205,751 won or more; and (v) the amount of double transfer was 305,751.7.75.

B. 1) The “combined question” in which two or more questions are combined with one question is at the same time, there is a danger that a person who requests two or more answers to one question and answers to only one question, and makes it unclear as to which question has been asked by failing to answer the remaining question. Therefore, in determining whether a defendant has given a positive answer to multiple questions, it shall be evaluated as a confession only where it is evident that the defendant has given a statement to the effect that he is guilty of a crime by sufficiently examining the front and rear context of the question and answer. In other cases, if it is not so, it shall not be evaluated as a confession by the defendant without permission.

2) The prosecutor asserts that “the defendant voluntarily consumed it at the time of the second prosecutor’s investigation.”

3) At the time of the second prosecutorial investigation, the fact that the Defendant respondeded to the question, “Nein, I will comply with the question,” stating, “I will do so even with the knowledge of the fact that the instant new card was remitted by mistake at post-2013’s operating expenses.”

However, the prosecutor’s question may not be deemed as having given the answer to the effect that the Defendant arbitrarily consumed the same, as claimed by the prosecutor, on the following grounds: (a) the question of “(i) whether the instant new card was remitted by mistake at the expenses of operation with her ancillary surgery before September 2013; and (b) the question of “B............, with the knowledge of the fact that the instant new card was remitted by mistake?” and the question of “B......, with the knowledge of the fact that the Defendant had been aware of double remittance,” as alleged by the prosecutor.

4) Rather, prior to the above multiple questions, the Defendant responded to the question “N.S.T.T.T. 2013, the phone calls from the victim’s new card to be written in advance before the clerical error?” “N.S. Does Do Do Do Do Do Do Do Do Do do Do Do Do Do Do Do Do Do Do Do Do Do Do Do Do Do Do. Do Do Do Do Do Do , Do Do Do Do Do , Do Do Do Do , Do Do Do Do , Do Do Do , Do Do d Do Do , Do Do Do , Do Do , Do , Do Do , Do Do , Do , I had to perform the surgery.” After the above multiple questions, the Defendant’s answer to the purport that the Defendant’s answer to the above multiple questions should be interpreted to the purport that “I Do Do Do Do.”

5) Therefore, prosecutor’s above assertion is without merit.

C. 1) In the crime of embezzlement, the prosecutor must prove that the defendant has an intention to obtain unlawful acquisition. The evidence should be proved by the strict evidence with probative value that makes the judge not having any reasonable doubt, and if there is no such evidence, it should be determined with the benefit of the defendant even if there is a suspicion of guilt against the defendant.

2) The prosecutor asserts that the defendant's assertion is difficult in light of the fact that the defendant did not return the amount of double remittance, that the defendant was exempted from the obligation to return the said amount on condition that the defendant operated the vehicle on behalf of the victim, and that the result of confirmation was not true, and that the defendant would pay the victim and submit evidentiary materials to support the claim, but did not perform it.

3) The above circumstances asserted by the prosecutor are merely to show the Defendant’s difficult economic situation or to partly impeachment the credibility of the Defendant’s statement, and it is difficult to recognize that the Defendant “the Defendant had consumed the Defendant’s statements at his own discretion with knowledge of double remittance.”

4) Therefore, the prosecutor’s above assertion is without merit.

5. Conclusion

Therefore, the prosecutor's appeal is without merit, and it is dismissed in accordance with Article 364 (4) of the Criminal Procedure Act. It is so decided as per Disposition.

Judges Sung Ho-ho (Presiding Judge) et al. and leaptables