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The defendant's appeal is dismissed.
Reasons
The summary of the grounds for appeal (misunderstanding of facts) was used as a lease deposit or a request for auction, and the Defendant kept the returned money. At the request of G and H, the Defendant used it as costs for the victim B Co., Ltd. (hereinafter “victim”) or returned it by means of account transfer or cash payment.
In addition, the defendant did not have the intention of embezzlement because he did not withdraw money with the physical card in the name of the victim company for the purpose of preserving the company fund.
2. Determination
A. The intent of unlawful acquisition in the crime of embezzlement on occupational part of the relevant legal doctrine
property of another person in violation of his or her duties for the purpose of seeking the benefit of himself or a third party, referring to the intention to dispose of property of another person, such as his or her own possession, and thereafter have the intention to return, reimburse or preserve
Even if it does not interfere with recognizing the intention of illegal acquisition (see Supreme Court Decision 2005Do3431, Jun. 2, 2006, etc.). Also, the act of transferring funds from others to another account under one’s name while keeping them in one’s own account and transferring them to another account under one’s name is contrary to the purpose of entrustment by comprehensively taking into account the specific circumstances, such as the method of management of entrusted funds, motive and circumstances leading up to the transfer act, the purpose of the transfer of funds, details of the use of transferred funds, etc., and where it is recognized that a criminal intent of usefulness is recognized, the act constitutes embezzlement and the act of changing the place of storage or the method of keeping funds.
The prosecutor bears the burden of proving that there is an act of embezzlement as an act of realizing one’s intent of acquisition of unjust enrichment, and such proof should be based on strict evidence with probative value that makes a judge not having any reasonable doubt, and if there is no such evidence, it should be determined with the benefit of the defendant even if there is a suspicion of guilt against the defendant.