The prosecutor's appeal is dismissed.

1. Comprehensively taking account of the evidence submitted by the prosecutor on the grounds of appeal, the court below found the Defendant guilty of embezzlement by refusing to return the instant goods with the intent of unlawful acquisition even though the Defendant was requested by the victim D to return the instant goods, such as electricity without charge, but determined that the lower court erred by misapprehending the legal principles or acquitted the Defendant of the instant facts charged.

2. Determination

A. “Refusal to return” under Article 355(1) of the Criminal Act refers to an act of expressing intent to exclude the owner’s right against the stored goods. As such, the mere fact that the custodian of another’s property refuses to return does not constitute embezzlement, but the refusal to return is the act of embezzlement by taking account of the reasons for refusal to return and subjective intent, etc.

The crime of embezzlement is established only to the extent possible (see, e.g., Supreme Court Decision 93Do874, Jun. 8, 1993). B. The following facts acknowledged by the evidence duly adopted and investigated by the court below, namely, ① a stock company B operated by the defendant (hereinafter “B”) entered into a contract for the supply of goods, the price of which is 31,00,000 won from D on February 14, 2014; the down payment of which is 10,50,000 won on the date of the contract; the remainder of which is 10,50,000 won from the remainder of which is 10,000 won; and the remainder of which is 10,50,000 won from the remainder of which is 10,000 won until July 4, 2014; the remainder of which is 10,50,000 won from the remainder of which is 10,700,000 others.