업무상횡령
The prosecutor's appeal is dismissed.
1. According to the evidence submitted by the prosecutor of the gist of the grounds for appeal, the fact that the Defendant voluntarily consumed and embezzled the transport cost of KRW 80,912,975 owned by the victim corporation D (hereinafter “D”) or the sum of the transport cost of KRW 54,460,68 for the victim E, F, G, H, and I (hereinafter “E, etc.”) during his/her business custody can be sufficiently recognized.
In particular, the defendant has a claim against D in relation to the above order.
However, the defendant's claim includes the amount to be deemed to have already been repaid among the claims for provisional payments claimed by the defendant, and the original amount to be reverted to D, but the amount of remittance to J's account (which is actually used by the defendant) and the amount of the defendant's use of D's money for an individual purpose has not been deducted respectively. In light of this, there is no defendant's claim for provisional payments against D.
The judgment of the court below which acquitted the defendant is erroneous in the misapprehension of facts and legal principles.
2. Determination
A. Part 1 of D’s occupational embezzlement 1) The lower court is difficult to recognize the Defendant’s intent to obtain unlawful acquisition of KRW 80,912,975 on the grounds of its stated reasoning, such as the fact that a large amount of money was deposited in the name of J, K, and L, the Defendant’s party to the D account, and that the Defendant’s wife account was frequently deposited and withdrawn from the Defendant’s wife account.
On the other hand, not guilty of this part of the facts charged.
2) In light of the following circumstances revealed by the records, the lower court’s above determination is justifiable.
A) As to the amount of the claim against D, the Defendant is KRW 92,68,00 (=44,300,476 won deposited in D account in the name of J, K, and L (= KRW 60,80,476 won disbursed from D’s account) - KRW 351,112,475 won remitted from D account.