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(영문) 서울고등법원 2016.04.01 2015노3203
업무상횡령등
Text

The judgment of the court below is reversed.

A defendant shall be punished by imprisonment for one year.

However, the period of two years from the date this judgment becomes final and conclusive.

Reasons

1. The summary of the grounds for appeal (the supplement of the grounds for appeal submitted after the expiration of the time limit for submitting the statement of reasons for appeal is to the extent of supplement in case of supplement of the reasons for appeal). A. Defendant 1’s mistake of facts and misapprehension of the legal principles (the point of receiving property in breach of trust) Defendant borrowed money from B when the funds are needed

B does not receive part of the money received as an investment attraction fee in return for an illegal solicitation.

2) K Co., Ltd. (formerly, BM Co., Ltd.; hereinafter “K”) does not want punishment as a victim of an unfair occupational crime of embezzlement.

Even if the violation of trust is found guilty, the money received from B was actually returned by transferring K shares to B without compensation.

The Defendant’s decision on investment (hereinafter referred to as “I”) is not only the profit gained by J private equity investment companies (J, hereinafter referred to as “J”) but also the loss is not the Defendant’s responsibility.

Considering these circumstances, the sentence of the court below (two years of imprisonment) is too unreasonable.

B. The public prosecutor’s act of sentencing is heavy in light of the amount of money received or embezzled as a result of each of the instant crimes, the period, frequency, and method of committing the crime.

The defendant is not against his will.

Investment that was the case by the defendant has increased the loss ratio compared to normal investment.

Considering these circumstances, the sentence of the court below is too unfortunate and unfair.

2. Determination on the misapprehension of facts and misapprehension of legal principles

A. (1) The details invested by I, etc. through the introduction of B whether the amount paid by B to the Defendant was partially distributed or not, and the fees received thereby are as shown in the attached Table 1 “List of Investment and Fees.”

This is compared with the date and amount of each crime of violation of trust as stated in the facts charged, there are many cases where B does not pay money to the defendant even after receiving the fee, and ② the fee and the defendant who received the fee.

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