특정경제범죄가중처벌등에관한법률위반(횡령)
The prosecutor's appeal is dismissed.
1. According to the summary of the grounds for appeal (based on factual errors and misapprehension of legal principles), on March 11, 2017, an agreement between the shareholders (hereinafter “instant agreement”) with respect to the allocation of duties, exercise of rights, performance of obligations, etc. related to the management of G Co., Ltd. (hereinafter “G”), and on March 17, 2015, the agreement between the shareholders stating the contents of the said agreement is an agreement between the shareholders (hereinafter “instant agreement”) and the share acquisition agreement with intent to transfer KRW 7,849,293 of G shares from H Co., Ltd. (hereinafter “H”) to KRW 2 billion from H Co., Ltd. (hereinafter “instant share acquisition agreement”). According to the share acquisition agreement, the victim deposited the share acquisition agreement with the account under the name of the Defendant in order to acquire G shares, and KRW 2 billion was delivered to the victim through the purchase price.
Therefore, as long as the Defendant received a refund of KRW 1.466 billion, which is a part of the above money due to the termination of the G share acquisition contract, the above KRW 1.466 billion is owned by the victim and is obligated to immediately return it to the victim. Thus, the Defendant’s arbitrary consumption of KRW 1.466 billion constitutes embezzlement.
Nevertheless, the judgment of the court below which did not recognize this part of the facts charged is erroneous by mistake and misapprehension of legal principles.
2. Determination
A. In full view of the following circumstances acknowledged by the evidence duly adopted and investigated, the lower court determined that the party to the instant agreement and the agreement on acquisition of shares, namely, a person who actually takes over G shares and management rights, is the Defendant, and that KRW 2 billion paid as the acquisition price of G shares and management rights, is the Defendant borrowed money from the Victim F. The lower court recognized that the Defendant was the victim’s ownership of KRW 1.4 billion out of the amount returned due to the agreement between the shareholders of the instant case and the cancellation of the agreement on acquisition of shares and the agreement on acquisition of shares.