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Defendant
All appeals by prosecutors are dismissed.
Reasons
1. Judgment on the appeal by the defendant
A. The summary of the grounds of appeal 1) misunderstanding of the facts and misapprehension of the legal principles [the part of embezzlement against the victim O 1420 high group 1420 victim O] The victim O entrusted the bond company P with Q sports SL350 passenger cars in the name of the wife (hereinafter “the instant vehicle”) as security and used the bonds of the interest. However, the Defendant borrowed money from S and returned the instant vehicle by taking it as security.
Accordingly, S made it possible to lend KRW 30 million to theO to repay the above bonds, and instead, it acquired the transfer security right by transferring the ownership of the instant car to himself.
In this regard, S arbitrarily disposed of the said vehicle that was acquired only by the transfer security right without the O's permission.
Therefore, the Defendant did not have the status of custodian during the process of transferring the instant car to S, and there was no intention of unlawful acquisition because he did not gain any benefits.
Nevertheless, the judgment of the court below convicting this part of the facts charged is erroneous by misapprehending the facts or by misapprehending the legal principles, which affected the judgment.
2) The punishment sentenced by the lower court (eight months of imprisonment) is too unreasonable.
B. 1) Determination on the assertion of misunderstanding the facts and misapprehension of the legal principles 1) Determination on the assertion that the defendant is not in a custodian’s position should be based on the status of actual or legal control over the property and the custody of the property should be based on the consignment relationship. However, it is not necessarily required to be established under a contract such as lending and borrowing of use, lease, delegation, etc., but can also be established by the management of affairs, custom, cooking, good faith principle, etc. (see Supreme Court Decision 2010Do17396, Mar. 24, 201). According to the evidence duly adopted and investigated by the court below, the defendant’s victim on the first day of July 2012.