A. 145 million won, which the victim of mistake of facts entrusted to the defendant, is the proceeds that the victim acquired through the operation of the illegal game room in which he/she committed the crime, and the victim is charged with the above money to the defendant in order to avoid confiscation or collection by concealing the above criminal proceeds.

Therefore, the above money constitutes illegal consideration, and even if the defendant arbitrarily consumed it, the crime of embezzlement is not established.

Nevertheless, the judgment of the court below which found the Defendant guilty of the facts charged of this case is erroneous and adversely affected by the judgment.

B. The sentence imposed by the court below (10 months of imprisonment) is too unreasonable.

2. Determination:

A. (1) The determination of a mistake of facts is based on the grounds that a claim for return of unjust enrichment of the relevant legal doctrine is prohibited, and the term “illegal cause” as provided by Article 746 of the Civil Act refers to a cause causing act that contravenes good morals and other social order (see, e.g., Supreme Court Decision 2004Da27488, 27495, Sept. 3, 2004). An act of anti-social order null and void under Article 103 of the Civil Act includes not only cases where the contents of the rights and obligations, which are the object of the legal act, violate good morals and other social order, but also cases where the content itself is not contrary to social order, even if it is legally enforced or a juristic act is not contrary to social order and thus becomes contrary to social order, and the motive of the legal act indicated or known to the other party

(See Supreme Court Decision 2009Da12580 Decided May 27, 2010, and Supreme Court Decision 2005Da23858 Decided July 28, 2005, etc.). However, Article 746 of the Civil Act states that a person who committed an act that is not socially reasonable is unable to be protected by law by asserting the invalidity of such unlawful act. As such, Article 746 of the Civil Act expresses the same as a person who committed an act that is not socially reasonable.