The judgment of the court below is reversed.

A defendant shall be punished by imprisonment for not less than eight months.

However, the above punishment shall be imposed for a period of two years from the date this judgment becomes final and conclusive.

1. According to the evidence submitted by the Prosecutor, including the statements of the victim E, F, G, N, and I, the Defendant’s work together with the victim E, F, G and the factory construction work, and the fact that the Defendant was performing the civil engineering work among the factory construction work instead of obtaining a construction license from H Co., Ltd., and that the Defendant was fully aware of the fact that he embezzled soil and stone sales proceeds while performing the said construction work.

Nevertheless, the court below acquitted the defendant on the ground that there is no evidence to acknowledge this, which is erroneous in the misapprehension of facts, thereby affecting the conclusion of the judgment.

2. Determination

A. The summary of the facts charged in the instant case is that the Defendant: (a) instead of being ordered by D (hereinafter “D”) among the new factory construction works, the Defendant would be responsible for subcontracting construction for the total construction cost of KRW 440 million for the victim E, F, G and Dong businesses; and (b) the said Corporation, the representative of H Co., Ltd. (hereinafter “H”) granted a construction license and decided to undertake subcontracting construction works in the name of H by borrowing a construction business license from H Co., Ltd. (hereinafter “H”).

D The subcontract contract with the D shall be paid at least 20% in the early stage of the construction, and at least 80% in the progress of the construction work, and the remainder of the construction work shall be paid in installments in accordance with the following conditions. As the Defendant and the victims, while performing the construction work, have sold and sold earth and sand and rock and have allowed D as the implementer, it should be used as the construction cost.

However, the defendant, using the fact that the victims' experience in shipping earth and sand, entered into a contract for shipping earth and sand in the above construction site and received money from the K account in the name of the above corporation.