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A defendant shall be punished by imprisonment for not less than five months.
Reasons
Punishment of the crime
On July 21, 2011, the Defendant invested KRW 140 million from the victim D, and the Defendant invested KRW 80 million, and operated in a restaurant for Pyeongtaek-si E chickens with the victim on December 10, 201, and received a total of KRW 159,900,000, including deposit money, premium, etc., while disposing of the said restaurant on December 10, 201.
From the proceeds from the disposal of the above restaurant in 117,219,250 won remaining after settling all the expenses, such as repayment of debts, etc. related to the above business, the Defendant: (a) settled the balance from the proceeds from the disposal of the above restaurant, and embezzled 63,139,523 won corresponding to the victim’s share among the remaining 117,219,250 won after settling all the expenses, such as repayment of debts, etc. related to the above business; (b) x 14/22 (limited to the share ratio of the victim) x 37,219,250 won among those remaining after paying the remainder to the victim; and (c) 8,523 won corresponding to the victim’s share from the proceeds of the disposal of the above restaurant in 117,219,250 won; and (d) x 14/273 won on the ground that the victim voluntarily refused to consume the remaining 25,920,273 won.
Summary of Evidence
1. Partial statement of the defendant;
1. Each legal statement of witness D, F and G;
1. The Defendant asserted that there was an agreement between the victim and the Defendant to guarantee the principal invested by the Defendant regarding the issue of each prosecutor’s statement regarding D and F, and that there was no intent to obtain unlawful acquisition, since the Defendant refused the victim’s request for return according to the agreement.
On the other hand, the intention of unlawful acquisition in embezzlement refers to the intention of a person who keeps another's property without authority to dispose of the property as his own property for his own interest or for a third party's interest, and thus, even if he refuses to return it, if there is a justifiable reason to refuse to return it, it shall not be deemed that he has the intention of unlawful acquisition.