(영문) 서울중앙지방법원 2013. 12. 18. 선고 2013노3640 판결[횡령(일부인정된죄명:재물은닉)·사기][미간행]
Defendant
Prosecutor
Posk-styles, spawneds (each indictments), spawneds (Public Trial)
Attorney Sung-sung (Korean)
Seoul Central District Court Decision 2012Da3416, 621 (Consolidated) decided October 8, 2013, and application for compensation order 2012 Seocho3500 decided October 8, 2013
The part of the judgment of the court of first instance regarding embezzlement shall be reversed.
As to the above reversal portion, the punishment against the defendant shall be determined by imprisonment for two months.
However, the execution of the above punishment shall be suspended for one year from the date this judgment becomes final and conclusive.
The prosecutor's remaining appeal (appeal against fraud) is dismissed.
1. Scope of the judgment of this court and the gist of grounds for appeal;
A. Scope of adjudication
The prosecutor appealed only from the acquittal portion of the judgment of the court of first instance (i.e., the charge of fraud and embezzlement against the victim non-indicted 2), and on March 31, 2012, on which both parties did not appeal, the part of embezzlement was already separated and finalized, and only the part of the prosecutor appealed as above is subject to the judgment of the court of this Court.
B. Summary of grounds for appeal
The first instance court's decision that there is insufficient evidence to prove this part of the facts charged without examining the victim non-indicted 2 is erroneous, such as misconception of facts or misapprehension of legal principles (in relation to the point of fraud: the defendant's intention of illegal acquisition; thus, this part of the court's decision should also be convicted).
2. The judgment of this Court
A. Ex officio determination
Before the prosecutor's judgment on the grounds for appeal, the prosecutor's name of the crime of embezzlement against the victim non-indicted 2 was examined ex officio prior to the prosecutor's judgment on the grounds for appeal, and the applicable provisions of law are "resting", "Article 366 of the Criminal Act", and this court applied for permission to change the facts charged as follows and subsequently changed the subject of judgment. As such, due to the following changes in circumstances, the point of embezzlement against the victim non-indicted 2 in the judgment of the court of first instance is no longer maintained.
However, despite the above reasons for ex officio destruction, the assertion of mistake of facts, etc. related to the prosecutor's fraud is still subject to the judgment of this court.
B. As to the assertion of mistake of facts as to the fraud
Even based on Non-Indicted 2's statement, etc. of the witness at the trial court, the first instance court's decision is acceptable, and there is no illegality such as misunderstanding of facts that affected the conclusion of the judgment, and thus, the prosecutor's above assertion of this issue cannot be accepted.
3. Conclusion
Therefore, without accepting an appeal regarding the prosecutor's fraud in accordance with Article 364 (6) of the Criminal Procedure Act, there is a ground for ex officio reversal as seen earlier among the part not guilty of the judgment of the court of first instance, and thus, it is reversed ex officio only the part, and it is decided as follows.
On October 8, 2013, the Defendant was sentenced to a suspended sentence of two years for six months of imprisonment with prison labor for embezzlement, and the judgment became final and conclusive around October 16, 2013. On April 2012, the Defendant’s “○○ Industries Company” in the “○○○○○ Industrial Company” operated by the Defendant, which was located in the “○○○○○○ Industrial Company” ( Address 1 omitted) at the Seocho-si on April 16, 2012, the repair was not open, and the repair was performed upon request for repair of the Defendant’s non-indicted 2’s market price of the victim, and the towing business operator whose name is unknown on May 2012, who was in the “○○○○ Industries Company” did not know of the Defendant’s name, and caused the towing business operator to tow the said car at approximately one km away from the place, and did not notify the victim of such circumstances, making it difficult to discover the said amount of property from around 2013 to 2013.
1. Part of the statement by the defendant at the court of the trial.
1. A statement made by Nonindicted 2 in the trial court.
1. Selection of applicable laws and punishment concerning facts constituting an offense;
Article 366 of the Criminal Act
1. Handling concurrent crimes;
The latter part of Article 37 and Article 39(1) of the Criminal Act.
1. Suspension of execution;
Article 62(1) of the Criminal Act (No grounds for disqualification for suspended execution exist, such as there is no record of punishment against the defendant for a crime similar to a similar crime, and the principle of equity, etc. with the case of being tried at the same time as the judgment of the court of first instance became guilty
Judges Park Jong-dae (Presiding Judge)
Note 1) Of the judgment of the first instance court, the part which became final and conclusive as guilty because both parties did not appeal.