업무상횡령
The defendant's appeal is dismissed.
1. The summary of the grounds for appeal (based on factual errors, misunderstanding of legal principles) is that the Defendant entrusted the victim with “I” (hereinafter “the picture of this case”) as stated in the facts charged of this case, but the sales proceeds are paid over a longer period of time due to the heavy time required for appraisal of the authenticity of art works in accordance with trade practices in the art consignment sales industry. In this case, the Defendant delivered the art works much more than KRW 160 million claimed by the victim as a substitute payment, and thus, the Defendant did not constitute the crime of occupational embezzlement, despite the fact-finding or misapprehension of legal principles, the lower court convicted the Defendant by misapprehending the legal doctrine.
2. 1) The crime of embezzlement is a so-called dangerous crime established where the legal interest of the principal right, such as ownership of another person’s property, is protected, and where there is a risk that the principal right may be infringed, the act of a person who keeps another person’s property by offering it as security without his/her consent constitutes embezzlement where the intent of unlawful acquisition is expressed (see, e.g., Supreme Court Decision 2008Do10971, Feb. 12, 2009). In addition, the intent of unlawful acquisition in embezzlement refers to the intent of disposing of another person’s property, such as his/her own property, kept in violation of his/her duty to seek the benefit of himself/herself or a third person. Even if there is an intention to return or compensate it later, it does not interfere with recognizing the intent of unlawful acquisition (see, e.g., Supreme Court Decision 2011Do1906, Apr. 28, 2011).