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(영문) 대법원 2016.05.24 2015도17994

업무상횡령

Text

All appeals are dismissed.

Reasons

The grounds of appeal are examined.

1. As to the grounds for appeal by Defendant A, the appellant or his/her defense counsel shall submit a written reason for appeal to the appellate court within 20 days from the date of receipt of the records of trial by the appellate court (Article 361-3(1) of the Criminal Procedure Act). Moreover, the appellate court may render ex officio a judgment even in cases where the grounds for appeal stated in the petition of appeal or contained in the statement of reason for appeal submitted within the above period are not included in the grounds for appeal (Article 364(1) and (2) of the Criminal Procedure Act, only in exceptional cases affecting the conclusion of the judgment (Article 364(1) of the Criminal Procedure Act). According to the records, the defendant has received a notice of receipt of the records of trial by the court on March 5, 2014; the above defendant fails to submit a written reason for appeal within 20 days from the date of delivery; his/her defense counsel failed to submit the written reason for appeal; and the defendant's defense counsel submitted a written reason for appeal containing the grounds for appeal in this case.

Examining the above facts in light of the legal principles as seen earlier, the allegation stated in the Reasons for Appeal No. 205, May 26, 2014, which was sent by the defense counsel of the above defendant, was subsequent to the expiration of the period for submitting the appeal, and thus does not constitute a legitimate ground for appeal. The allegation in the grounds for appeal by mistake of facts or misapprehension of legal principles, which is the same purport, constitutes a new ground for appeal to the court of final appeal, which

2. Examining the reasoning of Defendant B’s appeal in light of the evidence duly admitted by the first instance court, which maintained the reasoning of the lower judgment, the lower court was justifiable to have determined that Defendant B was guilty of the facts charged in this case on the grounds indicated in its reasoning, and there was no error of misapprehending the legal doctrine on the crime of embezzlement in the course of occupational duties, contrary to

3. The final appeals are all filed.