The defendant's appeal is dismissed.

1. Summary of grounds for appeal;

A. misunderstanding the facts and misapprehension of the legal principles are one shareholder interest representative director of D (hereinafter “instant company”) on the basis of the final judgment, etc. finalized in the relevant case, and the judgment against the Plaintiff was finalized in the construction cost lawsuit filed against the instant company by E, etc. on the condition that there was profit claim or remaining property distribution claim of the instant company, as to the profit or remaining property of the instant company, and on the condition that there was a remaining property distribution claim, in order to appropriate it for his/her repayment, as the judgment against the Plaintiff became final and conclusive, the Defendant used the instant company’s deposited provisional seizure release deposit in the instant lawsuit as well as KRW 16,950,449, and KRW 125,327,111 (hereinafter “the instant deposit”). As such, there is no intent of embezzlement or unlawful acquisition.

Nevertheless, the judgment of the court below which found the defendant guilty without sufficiently examining the facts, and it erred by misapprehending the legal principles, which affected the conclusion of the judgment.

(b) Sentencing (the sentence of the court below: Imprisonment with prison labor for not less than ten months and two years of the suspension of execution).

2. Determination

A. Determination of misunderstanding of facts and misapprehension of legal principles 1) If a representative director, who holds an individual claim against a company, appropriates money held by the company on behalf of the company to pay his/her own claim, he/she cannot be punished for embezzlement on the ground that the intent of unlawful acquisition is not recognized.

However, it is necessary to closely examine whether such bonds exist, how much accurate amount is, and whether the representative director's act can be seen as the act of securing the repayment of the bonds.

Meanwhile, insofar as the representative director arbitrarily consumeds the money owned by the company for the personal purpose with an intention to obtain unlawful acquisition, it does not affect the crime of embezzlement of business already established at the time of using money solely on the ground that he/she has a separate claim against the company.

2) The court below is legitimate.