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(영문) 대구고등법원 2019.11.27 2019노91
특정경제범죄가중처벌등에관한법률위반(횡령)등
Text

1. The judgment below is reversed.

2. The defendant shall be punished by imprisonment for three years;

3.Provided, That it shall be for four years from the date this judgment becomes final and conclusive.

Reasons

1. Summary of grounds for appeal;

A. misunderstanding of facts and misunderstanding of legal principles 1) The act of entering the non-standing workers in the part of the charges of obstruction of the performance of official duties in the status of participating professionals due to the false employee description by the Defendant (part of the judgment of the lower court) does not constitute a fraudulent means by the false employee description, etc. In addition, there is no causal relationship between such act and the interference, and the Defendant did not have the intention or intent to commit the crime.

B) As to the portion of the charge of occupational embezzlement for the use of subsidies related to the cost of research equipment (No. 42 million won in the charge of occupational embezzlement (No. 2) as the Defendant used the subsidy for the purpose of use, and concluded a monetary lending contract with a seller of research equipment and made money transactions with a seller of research equipment. Thus, the crime of occupational embezzlement is not established. (C) As to the part of the charge of occupational embezzlement for the use of subsidies related to the research allowance (No. 9,064,070 won in the charge of occupational embezzlement (No. 2. 5 per annum)), the Defendant paid the Institute a normal research allowance to the Institute and distributed the amount paid to C (hereinafter “C”) by a voluntary separate disposal of the Institute as the source to its employees, so it does not constitute embezzlement using research and development expenses for any purpose other than the purpose of use.

2) The lower court determined that the act of preparing the instant proposal by the method of modifying the drawings of the part concerning the charge of obstruction of the performance of official duties by deceptive scheme by the method of modifying the drawings of the prosecutor (not guilty part of the reasoning) and other methods constitutes a deceptive scheme and thereby the result of the obstruction of the performance of official duties was not recognized as impeding the execution of official duties by the Defendant’s deceptive scheme. In so doing, the lower court erred by misapprehending the legal doctrine on causation

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