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Reasons
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(영문) 서울고등법원 2017.02.03 2016노2739
특정경제범죄가중처벌등에관한법률위반(횡령)등
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Defendant

All appeals by prosecutors are dismissed.

Reasons

1. Summary of grounds for appeal;

A. The sentence of the lower court (two years and six months of imprisonment) is too unreasonable.

B. Prosecutor 1) In fact, misunderstanding of the legal doctrine and misunderstanding of the legal doctrine (non-violation part) agreed to lease I’s 236 store under the I’s 236 store with Z around October 2006 (hereinafter “instant store”) to the Z, and did not conclude a lease agreement with Y.

Nevertheless, the Defendant, on November 28, 2006, received KRW 260 million from the Z, deemed that Y transferred the right of lease to the Z after the Defendant sold the instant store in lots on November 28, 2006, and thus, the Defendant was in custody for J for the remainder of KRW 183.5 million after deducting the amount of KRW 76.5 million deposited to J from the said KRW 260 million, or there was an intention of unlawful acquisition by the Defendant.

On the ground that it is difficult to see this part of the facts charged, the lower court erred by misapprehending the facts or by misapprehending the legal doctrine.

2) The sentence of the lower court’s improper sentencing is too uncomfortable.

2. Determination

A. The following circumstances are acknowledged based on the evidence duly adopted and investigated by the court below and the court below's decision as to the prosecutor's misunderstanding of the facts and the legal principles. In other words, the Defendant: (a) a lease agreement with the content that "the store of this case is leased by the J on November 28, 2006 with a deposit of KRW 13.5 million, monthly rent of KRW 750,000; (b) the period from December 1, 2006 to July 31, 2008; (c) obtained approval from the J members; (d) AB, a member other than AA; and (e) obtained approval from AC; (e) the Defendant obtained a deposit of KRW 100,000 from the LA on November 28, 2006; and (e) the lease deposit of KRW 500,000,000,000 from the store rent of this case; and (e) the lease deposit of KRW 105,500,00,000.

C. On July 31, 2007 between J and Z of evidence No. 107, 245, and (3) between J and Z.

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