(영문) 서울중앙지방법원 2016.09.29 2016노2531

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(영문) 서울중앙지방법원 2016.09.29 2016노2531

업무상횡령등

Text

All appeals by the defendant and the prosecutor are dismissed.

Reasons

1. Summary of grounds for appeal;

A. Defendant (as to the conviction of the lower judgment), Defendant’s monthly salary of KRW 10 million was set at KRW 10,000,000; however, due to the issue of tax, etc., Defendant embezzled some of the money that was paid to G and H, merely because it was an accounting process as if the amount was paid.

However, the lower court erred by misapprehending the facts, thereby finding the Defendant guilty of this part of the facts charged.

(2) The sentence sentenced by the lower court (six months of imprisonment and one year of suspended execution) is too unreasonable.

B. A prosecutor (1) misunderstanding the facts of the judgment of the court below) continuously deposited the operating income of the Victim F Co., Ltd. (hereinafter “victim”) under the name of the lease deposit, etc. of D Co., Ltd. (hereinafter “D”), and the golf course affiliated with the ship of this case, regardless of the name of the lease contract, shall be deemed directly leased D in substance. Therefore, in light of the fact that the damaged company caused damage to the victimized company by paying the lease deposit, etc. on behalf of D, the evidence submitted by the prosecutor alone, even if it is sufficiently recognized that the Defendant had the intention of breach of trust, the court below erred in finding the Defendant not guilty of this part of the facts charged.

(2) Improper sentencing (as to the conviction of the lower court’s judgment), the sentence that the lower court rendered is too uneasible and unfair.

2. Determination

A. The court below also asserted that the defendant's assertion of mistake of facts was identical to that of the above facts, and the court below rejected the above argument in detail, and in light of the evidence duly admitted and investigated by the court below, the judgment of the court below is legitimate, and thus, the defendant's assertion of mistake of facts is not acceptable.

B. Determination of the Prosecutor’s assertion of mistake of facts

유사 판례

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-서울고등법원 2016.05.25 2015노3559