The judgment of the court below is reversed.

A defendant shall be punished by imprisonment for six months.

1. Summary of grounds for appeal;

A. Recognizing the fact that a mistake of fact-finding defendant sold only 210 million won of Chinese friendship owned by the victim and paid only 120 million won among them to the victim, however, the victim's storage of a group of sales proceeds to the victim would be subject to a request for fraud due to the decline in the price last, and there was no demand for a request for the change of sales proceeds made to the defendant before the complaint of this case.

In light of these circumstances, the victim transferred the right to dispose of the sales price to the defendant, or impliedly consented to the use of the right by the defendant.

Therefore, the judgment of the court below which found the defendant guilty of the facts charged of this case is erroneous and adversely affected by the judgment.

B. The lower court’s sentence of unreasonable sentencing (ten months of imprisonment) is too unreasonable.

2. Determination

A. 1) Determination on the assertion of mistake of facts is based on the ownership of the consigned goods on consignment with related legal principles, and the proceeds from the sale thereof shall belong to the truster at the same time upon receipt of the ownership, and barring any special circumstance, the crime of embezzlement is established when the commission agent arbitrarily uses or consumes the consigned goods or the proceeds from the sale thereof (see, e.g., Supreme Court Decision 89Do813, Mar. 27, 1990). In the crime of embezzlement, the expression of intent to acquire unlawful acquisition refers to the intention to dispose of the goods of another person in violation of his/her duty to pursue his/her own or a third party’s interest, and even if he/she wishes to return, reimburse, or preserve them later, it does not interfere with the recognition of the intention to obtain unlawful acquisition (see, e.g., Supreme Court Decision 2011Do7259, Mar. 14, 2013). In addition, in cases where a criminal defendant’s intent to obtain unlawful acquisition belongs to the deliberation of intent to obtain unlawful acquisition, this subjective element is reasonable.