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The judgment below
The part of the case of the defendant is reversed.
Defendant shall be punished by imprisonment for a term of two years and two months.
Reasons
1. Of the facts charged in the instant case, the lower court found the Defendant not guilty for the crimes listed in the table of crimes (2) Nos. 3, 5, and 17 attached to the lower judgment among the facts charged for occupational embezzlement of this case, but sentenced the Defendant to two years and six months of imprisonment with labor for each of the remaining facts charged except for this.
Accordingly, only the defendant appealed against the above guilty portion as follows, and the prosecutor did not appeal the entire verdict of the court below as well as the acquittal portion for the above reasons.
In such a case, according to the indivisible principle of appeal, the part of innocence in the above reasoning is also remanded to the trial court. However, since the part of innocence in the above reason is already excluded from the object of attack and defense between the parties, it cannot be judged again by the court (see Supreme Court Decision 2004Do5014, Oct. 28, 2004). Therefore, the conclusion of the judgment of the court below is followed with respect to the part of innocence in the above reason, and this court is not judged separately.
2. Summary of reasons for appeal;
A. The Defendant, as stated in the judgment of the court below, did not know the facts, by deceiving victims under the criminal intent of fraud, or by deceiving them, or by arbitrarily consuming the funds for the operation of the FY club by the victim D.
The specific changes in the contents of each criminal facts by each item shall be as follows:
Nevertheless, the court below convicted all of the above facts of the crime, which is erroneous in the misapprehension of facts, which affected the conclusion of the judgment.
[2017 Highest 210] Criminal facts of each case in the judgment below (2017 Highest 2.10) The Defendant, at the time, agreed with the victim D to receive KRW 100 million as consulting expenses related to the operation of a yacht club. Of them, the Defendant received payment by division of KRW 78 million among them. The victim’s request is made.