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The defendant's appeal is dismissed.
Reasons
1. Summary of grounds for appeal;
A. misunderstanding of facts or misunderstanding of legal principles 1) The victim merely made an investment in the game of this case and operated the game of this case entirely by the defendant, the relationship between the defendant and the victim with respect to the operation of the game of this case is not a partnership but a undisclosed association under the Commercial Act. Therefore, even if the relationship between the defendant and the victim regarding the operation of the game of this case is recognized as a partnership, the defendant did not have the status of a person who keeps another's property.
B. The sentence imposed by the lower court (eight months of imprisonment) is too unreasonable.
2. Determination on the grounds for appeal
A. 1) As to the assertion of mistake of facts or misapprehension of legal principles, whether the Defendant and the victim were in an anonymous association relationship or not falls under the partnership property of the union members, if one of the union members arbitrarily consumed the amount acquired from the disposal of the union property, the crime of embezzlement cannot be exempted. This legal principle is also applicable to the so-called internal association whose partnership relationship is not externally revealed, even though it is an internal association relationship.
(2) In light of the above legal principles, the crime of embezzlement is not established even if a business operator is not in the position of a person who keeps another’s property, and thus, he/she is not in the position of a person who arbitrarily consumes the business profit, etc., even if the business operator voluntarily consumes the business profit, etc., on the ground that the business operator is not in the position of a person who keeps another’s property, and thus, the crime of embezzlement is not established.
(see, e.g., Supreme Court Decision 72Do2704, Jan. 30, 1973). Meanwhile, any legal relationship constitutes an internal partnership.