The judgment of the court below is reversed.

The defendant shall be innocent.

1. The summary of the grounds for appeal is that there was an agreement between the representative director C and the defendant to own the instant F F F sturst car (hereinafter “the instant vehicle”) between the victim D Co., Ltd. (hereinafter “victim Co., Ltd.”) and the defendant, and even if not, the defendant has the right to demand settlement of the instant vehicle, etc. purchased by the victim’s public interest in case of dissolution of the victim company. Thus, even if the defendant refused to return the instant vehicle, the crime of embezzlement is not established.

2. The summary of the instant criminal facts was, from August 27, 2012, kept and used the instant vehicle in an amount equivalent to KRW 18.2 million at the market price owned by the victim company from around August 27, 2012, the Defendant refused and embezzled the said vehicle even though the Defendant was requested by C, the representative director of the victim company, to return the said vehicle on October 2012.

3. Determination

A. “Refusal of return” in the crime of embezzlement refers to an act of expressing intent to exclude the owner’s right against the stored goods. As such, the crime of embezzlement is not established solely on the fact that the custodian of another’s property simply refuses to return, and the refusal of return should be deemed to be the same as the embezzlement, taking account of the reasons for refusal of return, subjective intent, etc.

(See Supreme Court Decision 2003Do7487 Decided February 10, 2006; Supreme Court Decision 2008Do8279 Decided December 11, 2008; Supreme Court Decision 201Do7637 Decided August 23, 2013, etc.) B.

Facts of recognition

The following are examined: (a) the witness C's testimony at the original court and the trial court; (b) each police's protocol of interrogation of the suspect against the defendant; (c) the statement at the police's protocol of interrogation of the suspect against the defendant; (d) the register of automobile; (e) the register of automobile; (e) vehicle purchase receipt; (e) the copy of the articles of incorporation;