업무상횡령
The judgment of the court below is reversed.
Defendant shall be punished by a fine of KRW 6,000,000.
The above fine shall not be paid by the defendant.
1. Summary of grounds for appeal;
A. Comprehensively taking account of the evidence submitted by a mistake-finding prosecutor, the lower court acquitted the Defendant of this part of the facts charged on the ground that the Defendant cannot be found to have had any intent to obtain unlawful acquisition of the funds of K or G Care Center, although it could be recognized that there was an intent to obtain funds from K or G Care Center.
B. The lower court’s sentence of unreasonable sentencing (three million won of fine) is too uneased and unreasonable.
2. Judgment on the assertion of mistake of facts
A. The Defendant of this part of the facts charged: (a) from November 2009 to January 201, 201, at K operated by the victim D with F2 floor in Seodaemun-gu Seoul, Seodaemun-gu, Seoul; and (b) from February 2011 to February 2013, at G Care Center operated by the victim E on the third floor of the said building, the Defendant took charge of funding, documenting, etc.
On June 25, 2010, the Defendant received insurance money from the National Health Insurance Corporation and transferred KRW 962,285 to the new bank account in the name of L to the new bank account in the name of L, as if he received medical care benefits from K for the victim D, and used it for personal purposes.
The Defendant, including that, from around September 23, 201 to around September 23, 2011, embezzled total of KRW 30,83,275 on a total of 29 occasions while he/she kept funds of K and G Care Center (hereinafter “each center of this case”) for the victim D and E in the course of business, as stated in the [Attachment Table Nos. 1 to 29”.
B. The lower court determined that the Defendant remitted KRW 30,83,275 in total to a new bank account in the name of L in order to recover the money that the Defendant paid in advance with the Defendant’s money for the operation of each of the instant centers or to use the money for the operation of each of the instant centers, as described in the facts charged, and subsequently consumed the money for the aforementioned purposes. Therefore, the intent of unlawful acquisition is intended.