A defendant shall be punished by imprisonment for not less than two months.

A. misunderstanding of facts and legal principles, the Defendant’s ownership of KRW 51 million, excluding KRW 100,000,000,000,000 that was returned by the Defendant, out of KRW 151,000,000,000, which was paid by the injured party, does not constitute “other’s property”

B. The sentence of the lower court’s unfair sentencing (two months of imprisonment) is too unreasonable.

2. Determination

A. We examine ex officio prior to the judgment on the grounds for ex officio appeal.

In the first instance of the trial, the prosecutor filed an application for changes in indictment with respect to the facts charged as follows, and since the court permitted the changes in the subject of the trial, the judgment of the court below cannot be maintained.

However, even if there are the above reasons for reversal of authority, the part concerning KRW 40 million, which is included in the changed facts charged among the alleged misunderstanding of the above facts and misapprehension of the legal principles, is still subject to the judgment of this court, and this is to be examined.

B. As to the mistake of facts and misapprehension of legal principles, embezzlement is a crime punishing a person who keeps another's property to embezzlement, so the property subject to embezzlement is required to be held as another person. The money entrusted with the purpose and purpose of embezzlement is reserved to the truster until it is used for the prescribed purpose and purpose, and the trustee voluntarily consumes it (see Supreme Court Decision 2013Do11014, Jan. 16, 2014). According to the evidence duly adopted and examined by the court below, the victim was paid a compensation for expropriation of approximately KRW 600,000,000,000,000 (including KRW 150,000,000,000,000,000,0000,000,000,000,000 won).