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Defendant
All appeals by prosecutors are dismissed.
Reasons
1. Summary of grounds for appeal;
A. Defendant 1) In relation to the mistake of facts or misapprehension of legal principles, ① fraud, the Defendant received KRW 300 million from the injured party due to the money that contributed to concluding a sales contract for the department stores (hereinafter “the department stores of this case”) on the E-Gu and six parcels owned by the Cheongju-gu Co., Ltd. (hereinafter “D”), and thus, it can be used for the purpose of repayment of personal debt, etc., and there was no criminal intent of defraudation.
② In relation to the crime of violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Fraud), it is difficult to pay this balance to a stock company I (hereinafter referred to as “I”), and it is not true that it was paid 750 million won to D instead of delaying the payment date of remainder after consultation with the victim, and that it was not by deceiving the victim.
2) The sentence of the lower court that was unfair in sentencing (three years and six months of imprisonment) is too unreasonable.
B. Prosecutor 1) misunderstanding the facts or misunderstanding the legal principles, and recognizing the status of the custodian as to KRW 100 million deposited from Y Co., Ltd. (hereinafter “Y”) to the personal account of J’s representative director, the J may be deemed to have been simply remitted under the Defendant’s direction without the criminal intent of embezzlement. Accordingly, the Defendant’s embezzlement of KRW 70 million against I is established.
2) The sentence of the lower court’s improper sentencing is too unhued and unreasonable.
2. Determination:
A. The lower court’s determination on the Defendant’s misunderstanding of the facts or misapprehension of the legal doctrine as to fraud (1) is based on (1) the lower court held that: (a) with respect to the use of KRW 300 million, the Defendant, who first received KRW 300 million from the injured party at the time of two interrogations by the police; and (b) the Defendant, who then received the department store of this case, knew that the victim would incur a large amount of money upon accepting the department store of this case, requested the Defendant to take over the department store of this case, and gave KRW 300 million, so that KRW 300 million may be used as