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The defendant's appeal is dismissed.
Reasons
1. The summary of the grounds for appeal (fact-finding) is that the Defendant received KRW 20 million from the victim for auction tendering costs, expenses for change of the name of the owner, expenses for lien resolution, etc. After the auction procedure is completed, the Defendant did not embezzled the above money, even though he/she had been holding expenses for change of the name of the owner and expenses for resolution of lien issues.
2. Money entrusted with the purpose and purpose of determination is reserved by the truster until it is used for a given purpose and purpose, and thus, constitutes embezzlement if the trustee voluntarily consumes it (see, e.g., Supreme Court Decision 2007Do10341, Dec. 11, 2008). In the crime of embezzlement, the intent of unlawful acquisition refers to the intent to dispose of another’s property in his/her custody, such as his/her own property, for the purpose of seeking his/her own interest or a third party’s interest, and cannot be deemed as having no intention to return, compensate, or preserve it later.
(See Supreme Court Decision 2013Do15895 Decided May 16, 2014). According to the evidence duly admitted and examined by the lower court, the Defendant was delegated by the victim to purchase the affairs by participating in the auction of Youngcheon-si D (hereinafter “instant site”) and being in custody of KRW 20 million for that purpose, and embezzled by voluntarily consuming the Defendant for personal use.
As long as the Defendant used the money deposited by the Defendant for the Defendant’s personal purpose, the crime of embezzlement is established as long as the Defendant used the money deposited by the Defendant, and thereafter, the mere fact that the Defendant was preparing for the change of the owner’s name and/or lien of the building that was under construction on the instant site, does not affect the establishment of embezzlement.
The judgment of the court below which found the defendant guilty of the facts charged of this case is just, and there is no error of law.
3. If so, the defendant's appeal is justified.