업무상횡령
The judgment of the court below is reversed.
Defendant shall be punished by a fine of KRW 1,000,000.
The above fine shall not be paid by the defendant.
1. Summary of grounds for appeal;
A. In light of the fact that the representative director had a considerable discretion in the execution of funds due to the characteristics of the victim company where a business trip was frequently made by the representative director, that the funds kept by the defendant were not specified, that the defendant's retirement allowance claim held by the defendant was a claim subject to criminal punishment under the Labor Standards Act if it is not paid, and that the defendant executed the above funds within the scope of a legitimate retirement allowance recognized by law, not by the individual purpose, it is erroneous in the misapprehension of facts or in the misapprehension of legal principles as to the intention of unlawful acquisition.
B. The lower court’s sentence of unreasonable sentencing (three million won by fine) is too unreasonable.
2. Determination
A. The following circumstances acknowledged by each evidence duly adopted and investigated by the court below and the court below's decision on the assertion of mistake of facts, i.e., ① the defendant made a report with respect to the payment of employee's retirement allowance to F, the representative director of the victim company, around November 2010. On December 15, 2010, the above F, which sent to the defendant on December 15, 2010, is included in the direction for the settlement of wages related to K and L's retirement, it seems that the defendant made a prior report to F, the representative director of the victim company, or made a report in the form of ex post facto decision at least, with regard to the execution of the victim company's funds. ② Nevertheless, the defendant did not report to the representative director of the victim company for the 10 million won of this case claimed as his retirement allowance, ③ there were many cash offices other than the withdrawal of the 10 million won of this case in cash at the court below to the defendant, and ④ there was no testimony for the defendant to send the above portion to the defendant.