The prosecutor's appeal is dismissed.

The court below sentenced the defendant not guilty of each occupational embezzlement among the facts charged against the defendant, and sentenced the defendant guilty of the remaining facts charged, and the prosecutor filed an appeal only for the occupational embezzlement against the construction cost received from K during the occupational embezzlement. As such, the part of the embezzlement of the construction cost received from H in the occupational embezzlement is separated and finalized and excluded from the judgment of this court.

2. Regarding the fact that the defendant, as a representative of the victimized company, was in the position of keeping 6.5 million won as a business for the victimized company by entering into the instant contract with K as a representative of the victimized company, in full view of the evidence concerning the embezzlement of business for the construction price received from K, the court below erred by mistake of facts that did not recognize it.

In addition, the lower court, as seen above, acquitted some of the charges, thereby making the overall sentencing unfair.

3. Determination

A. In full view of the following circumstances revealed by the record, i.e., the victimized company initially argued that the parties to the instant contract were not the victimized company but the Defendant, the victimized company did not issue the tax invoice to K, and the K also stated that it entered into an individual contract with the Defendant that is not the victimized company. The evidence submitted by the prosecutor alone cannot be deemed to have proved that the Defendant, as the representative of the victimized company, stored the construction price for the victimized company under the supply of the instant construction work by K, to the extent that there is no reasonable doubt that the Defendant was keeping the construction price for the victimized company. Therefore, the lower court did not err in matters of mistake as alleged by the prosecutor, as otherwise alleged by the prosecutor.

Therefore, the prosecutor's argument of mistake is without merit.