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(영문) 부산고등법원 2018.05.24 2018노7
특정경제범죄가중처벌등에관한법률위반(횡령)등
Text

The judgment of the court below is reversed.

A defendant shall be punished by imprisonment for three years.

140,000,000 won shall be collected from the defendant.

Reasons

1. Summary of grounds for appeal;

A. The court below erred by misunderstanding the facts or by misapprehending the legal principles as follows, thereby adversely affecting the conclusion of the judgment.

1) Criminal facts No. 1 (Embezzlements related to the cost of performing the duties of union members) of the holding that the Defendant did not have led the promotion committee of the regional housing association (hereinafter “association”) or directly participated in the decision-making of the promotion committee, and there is no fact that the Defendant took charge of the fund execution duties while operating the I Co., Ltd., Ltd. (hereinafter “I”) which is an agent for the association’s implementation.

In addition, HanY, etc. is not a partner but a real estate broker, and the amount of KRW 180,000,000,000, which he remitted, is not a cost of performing the duties of the partnership, but an investment to I.

Therefore, the defendant is not entitled to the position of "a person who keeps another's property" in embezzlement.

In addition, according to the land purchase services agreement with I, F Co., Ltd. (hereinafter “F”) operated by the Defendant had a claim of 230 million won or more to I, and 180 million won or more from Y, etc. that was remitted from Y, etc. was delivered as a partial repayment of the above claim under the agreement with Da and J, so there is no intention to obtain unlawful acquisition by the Defendant.

2) The facts constituting the crime indicated in the judgment are as follows: (a) actual operation of I and N Co., Ltd. (hereinafter “N”) under Articles 2 through 5 of the Criminal Act (Embezzlements related to union members, violation of the Act on Regulation and Punishment of Concealment of Criminal Proceeds, etc.; (b) increase and decrease of executive officers and employees of financial companies, etc.; and (c) an executing agent of the U design service-related union; and (d) the Defendant only lent the name of representative director at his/her request, and there was no fact that he/she has been in charge of funding affairs while operating the said

In addition, there is no fact that the defendant was involved in each of the crimes in collusion with J, D, etc.

B. The sentence sentenced by the lower court to the Defendant (a punishment of four years of imprisonment and additional collection of KRW 140 million).

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