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The defendant's appeal is dismissed.
Reasons
1. Summary of grounds for appeal;
A. Although it was intended to receive KRW 50 million from misunderstanding of facts E for the payment of fees to G, the Defendant cannot be deemed to have committed an intentional crime of occupational embezzlement, since I lent KRW 20,000 to I with the consent of G by borrowing 20,000 won, and received full repayment of the said money and used it for the company’s funds.
B. The sentence imposed by the lower court on the grounds of unreasonable sentencing (5 million won of fine) is too unreasonable.
2. Determination
A. (i) The money entrusted with the purpose and purpose of the determination of mistake of facts is reserved to the truster until the money is used for the specified purpose and purpose. In particular, if the specific nature of the money is not required, even if the trustee uses it in a situation where it can substitute it with another money in the necessary time without going against the purport of the entrustment, it cannot be deemed that the crime of embezzlement is established. The trustee is embezzlement only when he consumes it for another purpose contrary to the purport of the entrustment.
(see, e.g., Supreme Court Decision 94Do2076, Oct. 12, 1995). Comprehensively taking account of the evidence duly adopted and examined by the court below, E, a stock company, specifying the purpose of use as a brokerage commission to G, entrusted the Defendant with KRW 50,000,000,000, out of the above money, and it is recognized that the Defendant used it by personal lending KRW 20 million to I.
As such, it is recognized that a company's funds entrusted by the defendant, the use of which is specified, are personally lent to I, contrary to that purpose, is disposed of at will for the benefit of a third party and is based on the intention of illegal acquisition. Therefore, the crime of occupational embezzlement is established.
Even if he/she used the money returned by I as the corporate operating fund, as argued by the Defendant, it is merely a return of the amount of damage.