사기등
The judgment of the court below is reversed.
A defendant shall be punished by imprisonment for not more than ten months.
1. Summary of grounds for appeal;
A. Defendant 1) Of the facts charged in the instant case of mistake of facts, there was no intention of unlawful acquisition by the Defendant on the part of occupational embezzlement. 2) The lower court’s sentence of unfair sentencing (one year of imprisonment) is too unreasonable.
B. In light of the nature of the instant crime committed by the prosecutor and the amount of damage, etc., the lower court’s punishment is too unfilled and unreasonable.
2. The Defendant asserts that the Defendant did not intend to acquire unlawful profits on the ground that the money was used for the said foundation or used for the personal purpose, although he remitted money from the account opened in the name of the Social Welfare Foundation D Foundation (hereinafter “instant Foundation”) to the account opened in the name of a third party under his management.
For the crime of occupational embezzlement to be established, a person who keeps another's property as his/her business in violation of his/her occupational duty with the intent of unlawful acquisition and thereby, shall embezzlement or refuse to return the property. Here, the intention of unlawful acquisition refers to the intention of disposal in fact or in law, such as in cases where the person who keeps another's property in violation of his/her occupational duty, owns another's property in violation of his/her occupational duty for the purpose of seeking
(See Supreme Court Decision 2001Do5439 Decided February 5, 2002, etc.). The health class back to the instant case, and the following circumstances acknowledged by the evidence duly admitted and investigated by the lower court, namely, ① the Defendant remitted money from the instant foundation’s account to the borrowed account, as if the Defendant paid benefits, to the borrowed account. ② When money was transferred to the borrowed account, the Defendant consumed some of the aforementioned accounts for personal purposes, such as paying a direct insurance premium, etc., and some of the money was remitted to the borrowed account directly or through another borrowed account, and then withdrawn in cash.