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(영문) 부산고등법원 2013.10.17 2013노327
사기등
Text

The judgment of the court below is reversed.

Defendant

A Imprisonment with prison labor for five years, and for two years, for Defendant C, respectively.

Reasons

1. Summary of grounds for appeal;

A. The punishment sentenced by the lower court (six years of imprisonment) is too unreasonable.

B. Defendant C1) misunderstanding of facts and misunderstanding of legal principles received KRW 200 million as stated in paragraph (5) of the crime at the time of original adjudication from Defendant A. However, at the time of the establishment of the instant company, the Defendant promised to receive KRW 300 million or KRW 500 million in the last time when investing KRW 70 million in A, and received the said money based on its promise. As such, the said money was paid in accordance with the promise, it can be deemed that the expenses should have been paid for the account at the beginning of the establishment of the instant company or the process of the establishment of the instant company. Furthermore, even if Party A paid the Defendant with a false name for the convenience of its disbursement, there was no intention to obtain unlawful profits from the Defendant and A. Moreover, the Defendant did not have conspired to commit the crime of embezzlement. 2) The punishment (three years) sentenced by the lower court of unfair sentencing is too unreasonable.

C. The Prosecutor’s sentence imposed by the lower court on Defendant C is too uneased and unreasonable.

2. Determination

A. The lower court found the Defendant’s assertion of mistake of facts and misapprehension of the legal doctrine as to Defendant C’s assertion of mistake of facts and misapprehension of the legal doctrine by comprehensively taking account of the facts and circumstances as indicated in its reasoning based on the evidence adopted and investigated by the lower court, and found the Defendant’s embezzlement of KRW 205,170,500 as

In light of the records, the judgment of the court below that found the defendant guilty of the occupational embezzlement of this case is just and there is no error of law such as misconception of facts alleged by the defendant.

B. According to the facts and circumstances acknowledged by the evidence duly examined and adopted by the first instance court and the first instance court on the assertion of unfair sentencing by the Defendants and the prosecutor, Defendant A shall be subject to the instant company.

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