횡령
The prosecutor's appeal is dismissed.
1. The summary of the grounds for appeal (fact-finding) is that the Defendant kept the money transferred to the account in this case under the name of the Defendant from May 21, 2015 to B from May 21, 2015, and uses part of the remitted money at any time during the return cycle and at any time at the request of the return of B. Thus, the Defendant and B continued to keep the money transferred for B without extinguishment until the Defendant requested the return.
Nevertheless, the lower court, on April 2017, requested the return of KRW 1,1050,000 from May 21, 2015 to April 4, 2017, without reliance on consistent B’s statement, etc. from the investigative agency to the lower court, and requested the return of KRW 1,1050,000,000 to the account in this case, continues to have a consignment relationship with the Defendant.
The fact that it is not sufficient to recognize that the defendant is obligated to return the above KRW 11050,000 to B, or that it was illegal.
2. Determination
A. The lower court determined that the consignment relationship between the Defendant and B with respect to the payment of KRW 14 million (=5 million won in KRW 5 million in total) was extinguished, on the grounds that: (a) the Defendant withdrawn the money remitted by B; (b) around January 25, 2016; (c) around July 8, 2016, he/she drafted a separate loan certificate of KRW 6 million in KRW; and (d) around October 27, 2016, he/she remitted KRW 3 million in KRW 14 million in total to H with the consent of B; and (e) the consignment relationship between the Defendant and B with respect to the payment of KRW 5 million in KRW 5 million in total; and therefore, it is difficult to recognize that the consignment relationship existed only with respect to the evidence submitted by the prosecutor with respect to KRW 1,1050,050 in the amount remitted from May 21, 2015 to April 4, 2017.
In addition, the lower court is not consistent with the B’s statement, and the Defendant’s account with B’s ancillary account KRW 1.72 million around April 15, 2017, KRW 2.60,000,000 around April 27, 2017, and KRW 1050,000 around the
5.4.4.Around 4.10,00 won; evidence transfers on 58 pages of evidence records, etc. may be deemed that the Defendant paid some of its obligations to B, and the Defendant allowed the Defendant to use a substantial portion of its deposits, or recognized the fact that he received a partial repayment.