A. In the misapprehension of the factual mistake or legal principles, the Defendant used 283,461,000 won out of 400 million won, which was entrusted by the victim D with investment money under a partnership agreement related to the construction business prior to the instant interference (hereinafter “the instant business”). However, the victim was also aware of the aforementioned circumstances, in light of the fact that the Defendant was able to arbitrarily dispose of KRW 400 million by mixing the funds of the Defendant’s management fund until before distributing the profit accrued under the instant partnership business agreement, or the victim was remitted to the account under the name of the Defendant’s management.

Therefore, the defendant's act does not constitute an occupational embezzlement.

Nevertheless, the lower court found the Defendant guilty of the facts charged of this case and erred by misapprehending the legal doctrine of embezzlement, thereby adversely affecting the conclusion of the judgment.

B. The sentence sentenced by the lower court to the Defendant (one year and six months of imprisonment) is too unreasonable.

2. Determination

A. 1) The money entrusted with the purpose and purpose specified by mistake of facts or misunderstanding of legal principles is reserved by the truster until the money is used for the specified purpose and purpose.

However, in a case where a specific nature of money is not specifically required, even if the trustee temporarily uses it in a situation where it is possible to substitute it for another money at a necessary time without going against the purpose of the entrustment, the crime of embezzlement cannot be deemed to be constituted even if it is used, and only when the trustee consumes it for another purpose contrary to the purport of the entrustment (see Supreme Court Decision 2007Do7568, Mar. 14, 2008, etc.).2) According to the evidence duly adopted and examined by the court below, according to the evidence duly adopted and examined by the court below, ① Defendant, victim, and the E-known transferee F set the total project cost of the instant case at KRW 80 million around December 2013, F.