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(영문) 서울중앙지방법원 2020.10.28 2019노2771
업무상횡령
Text

The defendant's appeal is dismissed.

Reasons

1. Summary of grounds for appeal;

A. Each legal dispute in the facts charged of mistake of facts and misapprehension of legal principles constitutes exceptional cases where it is necessary to conduct a lawsuit or respond to a complaint for the benefit of the association in light of the overall circumstances at the time and closely related to the affairs of the association.

Therefore, the expenses incurred in the facts charged cannot be deemed as the occupational embezzlement of the Defendant with the burden of paying the above expenses by the union as related to the business of the union.

Therefore, the court below erred by misapprehending the facts or by misapprehending the legal principles, thereby affecting the conclusion of the judgment.

B. The sentence imposed by the court below on the grounds of unreasonable sentencing (the fine of 4.5 million won) is too unreasonable.

2. Determination

A. As to the assertion of mistake of facts and misapprehension of legal principles, the defendant argued the same as the grounds for appeal in this part, and the court below rejected the above assertion in detail by stating the decision in detail. In comparison with the above judgment of the court below, the judgment of the court below is just, and the defendant's assertion of mistake of facts and misapprehension of legal principles

B. It is reasonable to respect the allegation of unfair sentencing in cases where there is no change in the conditions of sentencing compared with the first instance court, and the sentencing of the first instance court does not deviate from the reasonable scope of discretion.

(See Supreme Court en banc Decision 2015Do3260 Decided July 23, 2015). Based on the foregoing legal doctrine, there is no change in the sentencing conditions compared with the lower court’s failure to submit new sentencing data at the trial and the lower court. In full view of the factors revealed in the argument in the instant case, the lower court’s sentencing is too excessive to exceed the reasonable scope of discretion, and thus, does not seem to have exceeded the reasonable scope of discretion.

The defendant's assertion of unfair sentencing is without merit.

3. The Defendant’s appeal is dismissed in accordance with Article 364(4) of the Criminal Procedure Act on the grounds that the final appeal is groundless.

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