Attorney Kim Shin-hwan

A defendant shall be punished by imprisonment for not more than ten months.

except that the execution of the above punishment shall be suspended for two years from the date this judgment becomes final and conclusive.

A. As to the embezzlement of business among the facts charged in the case, a mistake of facts or a misunderstanding of legal principles as to the embezzlement of business among the facts charged in the judgment of the court below, ① since the amount of money listed in the table of crime (1), 7 through 15, 22 through 24, 28 through 31, 361, 42, 54, 55, 76, 77, 81, and 82 as stated in the table of crime committed in the judgment of the court below (26,617,505 won) is used by the defendant as a cost for the operation of the victim company, it cannot be recognized as the criminal intent of embezzlement or the criminal intent of unlawful acquisition. Since the remaining amount listed in the table of crime other than the above table is appropriated for repayment of the above claim in sequential order against the victim company, the court below erred in the misapprehension of legal principles as to the amount of embezzlement or the facts charged in the case of this case.

B. Unreasonable sentencing

Considering the fact that the defendant made efforts to recover damage, such as repayment of damage to the victim company, the punishment of the court below (one year of imprisonment) is too unreasonable.

2. Determination

A. Judgment on misconception of facts or misapprehension of legal principles

1) Determination as to the assertion of reimbursement of expenses equivalent to KRW 26,617,505

(A) Nos. 1, 11 through 14, 22, 23, 28, 31, 36, 54, 55, 76, 77, 81 and 82 relating to the list of crimes;

According to the data submitted by the Defendant, each of the amounts listed in the table Nos. 1, 11 through 14, 22, 23, 28, 31, 36, and 55 cannot be ruled out that, considering the fact that some of the amounts are used as the instructor's expenses that the victim company should pay (propact Nos. 11 through 13, 14-1 and 2) as shown in the table below, each of the above set out in the table cannot be used as the expense of the victim company, and the possibility that each of the above set out in the table of crime Nos. 54 was used as the salary of the employee AL of the victim company, and (3) it is difficult to avoid the possibility that each of the amounts listed in the table Nos. 76, 77, 81, and 82 was deposited in the victim company by the defendant or the defendant's spouse.

Therefore, the evidence submitted by the prosecutor alone is insufficient to recognize the fact that the defendant embezzled each amount as stated in Nos. 1, 11 through 14, 22, 23, 28, 31, 36, 54, 55, 76, 77, 81, and 82 with the intention of unlawful acquisition.

A person shall be appointed.

B) Nos. 7 through 10, 15, 24, 29, 30, 42 relating to the list of crimes

According to the evidence submitted by the prosecutor, the fact that each amount listed in the No. 7-10, 15, 24, 29, 30, and 42 of the crime sight table is transferred from the bank account of the victim company to the bank account of the defendant and used arbitrarily.

On the other hand, the defendant asserts that the above transferred money was used for tuition expenses (No. 7 through 10, 24, 29, 30) or entertainment expenses (No. 15,100,500 won and No. 2,100,000 won as stated in No. 42) at the expense of the victim company. However, there is no objective evidence to confirm the fact that it was used as tuition expenses in addition to the entrance fees prepared and submitted by the defendant, and the investigation report (No. 1582, 1584 pages of investigation records) on AG, which was classified as the entertainment expenses as the entertainment expenses usage place No. 12 No. 12 by the defendant, is different from the date of withdrawal and the amount, etc., and it cannot be confirmed as to the use place of entertainment expenses listed in No. 42. Thus, the above argument by the defendant is unacceptable.

2) Determination on the Defendant’s assertion of appropriation for repayment of claims

The representative director, who has personal claims against the company, uses money held by the company for the repayment of his/her bonds for the payment of his/her own bonds does not constitute an act of self-transaction in which the interests of the company and the directors conflict. Thus, the representative director

Even if a claim against one’s company was repaid without due process, it is valid as an act of performance of the company’s obligation within the representative director’s authority, and therefore, the intent of unlawful acquisition is not recognized, and thus cannot be held liable for the crime of embezzlement (see, e.g., Supreme Court Decisions 2001Do5459, Jul. 26, 2002; 98Do2296, Feb. 23, 1999). However, in order to bring a lawsuit against the Defendant’s act of withdrawal, even if the Defendant voluntarily withdraws the company’s funds as the representative director of the victim company and used them, the existence of the Defendant’s claim against the victim company should be confirmed, and what amount of withdrawal by the Defendant should be specified as an act of performance of the victim company’s obligation.

Therefore, in light of the following facts and circumstances acknowledged by the evidence duly adopted and examined by the court below in addition to the circumstances described in Section 2-B among the reasons for the crime of the crime of the judgment, it is difficult to recognize that the defendant had a claim against the victim company as alleged by the defendant at the time of each of the crimes of this case, and since it is difficult to specify what withdrawals by the defendant is the act of repayment to the victim company, the above argument by the defendant cannot be accepted.

① The Defendant retired from office on June 2010 when taking charge of the education of new employees in U Co., Ltd. (hereinafter referred to as “U”), and began to serve as the SP’s managing director who had been entrusted with the education of new employees by U.S. A. The Defendant, while entering S, invested KRW 70 million in the said company.

② On February 2011, K established a victim company to be in charge of U’s education of new employees on behalf of S due to a decrease in sales, etc., and the Defendant was in charge of the representative director of the victim company.

③ In managing the victim company, the Defendant spent KRW 45,810,000 (=26,010,000 + KRW 17,000,000) around August 25, 201, and KRW 17,00,00 around November 23, 201, and KRW 2,80,000 around December 26, 201 through 28, 201 (=26,010,000 + + KRW 17,000 + 2,80,000,000).

④ On December 2011, K arranged S and the operation of the victim company continued to be entrusted to the Defendant, and 34% of the shares in the victim company was assigned to the Defendant, 60% of the shares in the victim company to AO, who is one’s head, and 6% of the shares to AC.

(6) However, as the Defendant had invested KRW 70 million in S, and as regards the fact that the Defendant and AC had invested the same amount as S, K acquired shares significantly different to the victim company despite having invested the same amount, K in the court below stated in the judgment below as follows. In other words, K stated that the amount invested by the Defendant and AC is against S and it was not against the victim company, but it was against the victim company, but it was against the victim company. However, in the case of the Defendant, K stated that it transferred 34% shares, unlike AC, to the effect that there was some unpaid wages and there was a load bearing part of the company expenses.

Therefore, in light of such circumstances and the fact that K, the defendant, and AC evaluated the value of KRW 70 million as 6% of their shares in the victim company, there is room to view that even if the above KRW 45,810,000 paid by the defendant in the course of operating the victim company was the expenses paid by the defendant for the victim company, the claim against the victim company against the victim company was settled while the defendant acquired 34% of the shares in the victim company.

(6) The Defendant independently managed the funds of the victim company while operating the victim company. The Defendant released 2.3 million won on January 31, 2012, and 1.0 million won on February 23, 2012 as loans, and transferred 3,000,500 won to the Defendant without any special reason even though the monthly salary was paid on March 29, 2012, even if the monthly salary was paid on March 10, 2012, the Defendant released 1,200,500 won on May 10, 2012 for the purpose of the representative loan payment, or released 50,500,500 won on May 25, 2012 under the name of the representative of the victim company, and even if the amount was paid on July 9, 2012, the Defendant transferred 1,300,500 won on the part of the company’s dividends to the Defendant company for the purpose of paying dividends to the 20th of December 13, 2019012.

(No. 3) Even if the Defendant’s assertion, it is difficult to specify when the victim company specifically performed his/her act of performance in order to repay his/her obligation to the Defendant.

B. Sub-committee

Therefore, the judgment of the court below that the fact of occupational embezzlement as stated in Nos. 1, 11 through 14, 22, 23, 28, 28, 31, 36, 54, 55, 76, 77, 81, and 82 was proved without any reasonable doubt, was erroneous in the misapprehension of facts, and the defendant's assertion of mistake of facts or misapprehension of legal principles is justified within the scope of the above recognition.

3. Conclusion

Therefore, since the defendant's appeal against the guilty part of the judgment of the court below is partly reasonable, the conviction part of the judgment below is reversed under Article 364 (6) of the Criminal Procedure Act without examining the defendant's allegation of unfair sentencing, and it is again decided as follows.

[Grounds for multi-use Judgment]

Criminal facts and summary of evidence

The summary of the facts of the crime recognized by this court and the evidence thereof shall be "from around February 7, 2013, 2013, from around January 29, 2013," "from around February 7, 2013," and "attached List of Crimes (1), 1, 11 through 14, 22, 23, 28, 31, 36, 54, 55, 76, 77, 81, 82) of the attached List of Crimes (except for cases of 1, 11 to 14, 22, 23, 28, 36, 54, 56, 77, 81, 82 of the judgment of the court below," and "91 of the 7th sentence of the court below shall be described as "75 times", and "208, 816, 533 won of the same behavior" as "184, 759, 35 won" of the corresponding column of the Criminal Procedure Act.

Application of Statutes

1. Article relevant to the facts constituting an offense and the selection of punishment;

Articles 356 and 355(1) of the Criminal Act (with respect to occupational embezzlements, inclusive) of the Criminal Act, Articles 356 and 355(2) of the Criminal Act (with respect to occupational breach of trust, inclusive) of the Criminal Act, the choice of each imprisonment penalty

1. Aggravation for concurrent crimes;

The former part of Article 37, Article 38 (1) 2, and Article 50 of the Act

1. Suspension of execution;

In addition to the circumstances revealed in the reasons for sentencing under Article 62(1) of the Criminal Act, the court below shall take into account the fact that the defendant deposited 70 million won as the victim company as the principal deposit in this court, and then substituted the above 70 million won as part of the agreed amount by the agreement in the civil litigation related to the victim company and paid the remaining agreed amount, and then paid all the amount agreed in the above civil litigation. In addition, the court below shall determine the punishment as ordered by taking into account the following factors: the defendant's age, character, character, environment, family relationship, motive and consequence of the crime, circumstances after the crime, etc., and all the conditions of the entire sentencing

The acquittal portion

1. The summary of the charge of occupational embezzlement as stated in Nos. 1, 11 through 14, 22, 23, 28, 31, 36, 54, 55, 76, 77, 81, and 82 in the table of crime sights is as follows: the summary of the charge of occupational embezzlement as stated in the table of crime list Nos. 1, 11 through 14, 22, 23, 28, 31, 36, 54, 55, 76, 77, 81, and 82 in the manner as stated in the judgment of the defendant as stated in the judgment of the court below is as follows; the above charge constitutes a case where there is no proof of crime; and the order of embezzlement as stated in the judgment of the court below which found the defendant guilty under the latter part of Article 325 of the Criminal Procedure Act is not pronounced separately.

Judges Cho Jae-dae

Judge Fixed Number

However, in the statement of grounds for appeal, the purport of disputing innocence Nos. 31 and 36 is stated. Thus, the defendant Nos. 31 and 36 are stated.

It shall be deemed that there has been misconception of facts or misapprehension of legal principles.

2) The summary of the pleadings submitted by the defense counsel as of September 7, 2020 indicated 19,215,260 won, but the order of the list of crimes is set forth above.

Since it seems that the 31 and 36 times are disputed, it is the sum of the amounts set forth in the 31 and 36 times above.

3) In the statement of grounds of appeal, the Defendant and the defense counsel shall be KRW 700,500,000 transferred from the bank account of the victim company to the bank account of the Defendant on January 29, 2013.

Among the 700,000,000 won, 800,000 won, but 1,500,000 won, was used as a lecturer for the victim company, so the defendant company

the amount of the claim that the defendant held against the victim company, asserting that the claim was added to the amount of KRW 800,000,000.

50,610,00 won (49,810,000 won +80,000 won) is asserted, however, that the defendant used it as operating expenses of the victim company.

The above KRW 26,617,505 already included the above KRW 800,00 (the first page of the oral argument dated September 7, 2020). Damage claimed by the defendant is the damage.

claim amount against such company shall be deemed 49,810,000.