업무상횡령
The judgment of the court below is reversed.
Defendants shall be punished by imprisonment for one year.
However, for two years from the date this judgment becomes final and conclusive.
1. Summary of grounds for appeal;
A. misunderstanding of facts and misunderstanding of legal principles (defendant A and B) have deposited KRW 120 million each with the victim's clan as the victim's deposit in the name of the victim's repayment. Thus, it does not constitute "where it is extremely difficult for the victim to recover damage because he/she cannot exercise his/her right to claim for return of property or claim for damages, etc." under Article 6 of the Act on Special Cases concerning Forfeiture and Restoration of Corruption Property (hereinafter referred to as the "Act on Corruption and Confiscation of Property"). Thus, the defendants should not be separately sentenced
Therefore, among the lower judgment, the lower court erred by misapprehending the facts or by misapprehending the legal doctrine regarding the additional collection portion for the Defendants.
B. The lower court’s sentence (two years of imprisonment by each of the Defendants) is too unlimited and unfair.
2. The judgment of the court below on the part of the additional collection against the defendants as to the defendant A and B's assertion of misunderstanding of facts and misapprehension of legal principles, and the judgment of the court below
A. In principle, since property damaged by crime is subject to restitution or delivery, it is not subject to confiscation or collection. However, Article 6 of the Act on Forfeiture of Decomposed Property provides for confiscation or collection of property damaged by crime such as embezzlement for the protection of the victim and recovery of damaged property damaged by crime.
However, even if a crime victim's property is confiscated or collected pursuant to the above provision, this provision is likely to infringe on the property right of the crime victim whose legal interest is protected by the law, and thus, it is demanded to satisfy the requirement of "where it is deemed that the crime victim is extremely difficult to recover damage, such as where it is unable to exercise the right to claim for return of property or the right to claim for damage against the crime victim with respect to the crime victim's property."
In addition, the money collected through the above provision is collected.