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(영문) 대법원 2016.05.24 2015도18691
업무상횡령
Text

All appeals are dismissed.

Reasons

The grounds of appeal are examined.

1. Examining the reasoning of the lower judgment as to Defendant A’s grounds for appeal in light of the evidence duly admitted and examined by the lower court and the first instance court, the lower court’s determination that Defendant A was guilty of occupational embezzlement among the facts charged in the instant case on the grounds stated in its reasoning is justifiable.

In doing so, the lower court did not err by exceeding the bounds of the principle of free evaluation in violation of logical and empirical rules, or by misapprehending the legal doctrine on the trial of evidence and the establishment of crime of embezzlement.

2. According to the records on the grounds of Defendant B’s appeal, among the judgment of the court of first instance, the prosecutor only appealed the part on Defendant B on the grounds that the sentencing is too weak, and Defendant B did not appeal. On the grounds stated in its reasoning, the court below found Defendant B guilty of embezzlement among the facts charged against Defendant B, and found Defendant B not guilty on the ground that the rest of each of his duties, preparation of false official document, and the exercise of false official document constitutes a case not falling under a crime ex officio.

As can be seen, in a case where only the prosecutor appealeds the judgment of the first instance for the reason that the sentencing was unfair, and the defendant did not file an appeal, the defendant cannot be deemed as the ground for appeal on the grounds that the appellate judgment was erroneous or violated laws and regulations (see Supreme Court Decision 2009Do579, May 28, 2009, etc.). Accordingly, Defendant B’s assertion to the effect that the lower court erred by misapprehending the legal principles, or by misapprehending the legal principles, is not a legitimate ground for appeal

3. On the grounds of the prosecutor’s appeal, the lower court, on the grounds as indicated in its reasoning, did not prove the relevant crime against Defendant A’s abandonment of duty among the facts charged in the instant case, and did not constitute a crime against Defendant B’s abandonment of duty.

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