업무상횡령
The judgment of the court below is reversed.
Defendant shall be punished by a fine of five million won.
However, for one year from the date this judgment becomes final and conclusive.
1. Summary of grounds for appeal;
A. The Defendant did not have the intent of unlawful acquisition. Even if there was an intention of unlawful acquisition, even if there was an intent of unlawful acquisition, there was the victim's constructive consent on the embezzlement of the Defendant, or the Defendant's act of raising money at will constitutes a justifiable act and thus, the illegality is excluded.
B. The sentence of the lower court (a fine of five million won) is too unreasonable.
2. Determination
A. 1) Determination of misunderstanding of facts or misunderstanding of legal principles regarding a company’s shares can not be deemed as the company and the shareholder’s own property of a single-person company as a separate personality immediately. Thus, if the company’s own property is consumed at will during the course of business custody (see, e.g., Supreme Court Decision 9Do1040, Jul. 9, 199). This legal principle does not change in the case of a limited liability company under the Commercial Act. 2) According to evidence, all of the following facts are acknowledged: (a) if the defendant voluntarily brings money to the defendant, the former part of the victim’s workplace of the victim limited liability company, the representative of the victim, and (b) if the defendant arbitrarily brings money to the defendant is the owner of the victim’s personality chain separate from J, as alleged by the defendant, the defendant was in de facto marital relationship with the representative of the victim, and even if the defendant was paid money to the defendant for expenses, etc., he did not have such unlawful acquisition solely on the ground that the defendant did not have received money.
or the victim's constructive consent was given.
or the defendant's act does not violate social rules.
Therefore, although the reasoning of the judgment of the court below referring J as a victim is somewhat inappropriate, it is legitimate in its conclusion, so it cannot be deemed that there was an error of mistake or misunderstanding of legal principles that affected the judgment of the court below.
This part of the defendant's assertion is justified.