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Reasons
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(영문) 서울고등법원 2013.10.25 2013노589
특정경제범죄가중처벌등에관한법률위반(횡령)
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The judgment of the court below is reversed.

A defendant shall be punished by imprisonment for one year.

However, for a period of two years from the date this judgment becomes final and conclusive.

Reasons

1. Summary of grounds for appeal;

A. Defendant 1) The Defendant, at the time of committing the instant crime, took over the Defendant’s name transfer or agreed to start a new profit-making business in cooperation with the victim company and J (hereinafter “victim company”) after the Defendant took over the Defendant’s D Co., Ltd. (E on October 10, 2005, F Co., Ltd. on November 10, 2006, and G on March 30, 2007; hereinafter “victim company”).

On July 16, 2005, the Defendant lent funds necessary for the operation of the J, and entered into a stock acquisition agreement and management acquisition agreement (hereinafter “stock acquisition agreement of this case”). From the date of the contract to August 19, 2005, the Defendant additionally remitted KRW 234 million from August 23, 2005, to the J’s account.

On August 25, 2005, the Defendant had the J and the Victim Company enter into an exclusive business license agreement (hereinafter “instant exclusive business license agreement”) and transferred KRW 300 million to J under the exclusive business license agreement of this case. Among them, KRW 250 million was transferred by the Defendant as above to the exclusive business license agreement of this case, and KRW 250 million was converted to the deposit amount under the exclusive business license agreement of this case ( KRW 250 million if the portion of cash payment is included), but the Defendant transferred KRW 30 million to J under the name of the Victim Company by remitting KRW 30 million to J, thereby making repayment of KRW 250 million, and thus, it is not embezzled.

B) Of KRW 300 million which was remitted on August 25, 2005, KRW 50 million and KRW 150 million which was returned out of KRW 300 million which was remitted on October 28, 2005, and KRW 300 million which was returned on October 28, 2005, the Defendant was lent to K prior to the remittance of the said money, and is not embezzled under the lending contract, and is not embezzled. 2) The sentence of the lower court on unreasonable sentencing is too unreasonable.

B. The prosecutor of the court below.

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