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The judgment of the court below is reversed, and the case is remanded to Busan District Court Panel Division.
Reasons
The grounds of appeal are examined.
1. The money entrusted with the purpose and purpose specified is reserved by the truster until the money is used for such purpose and purpose;
However, in a case where the specific nature of the money is not specifically required, even if the trustee temporarily uses it in a situation where it can substitute it for another money at the necessary time without going against the purpose of the entrustment, the crime of embezzlement cannot be deemed to be constituted. The summary of the facts charged in the instant case is that the trustee uses it for another purpose (see, e.g., Supreme Court Decision 2002Do2939, Oct. 11, 2002). 2. The summary of the facts charged in the instant case is that, while the Defendant sold shares of himself and victims at the request of the victims and kept the proceeds of the sale for the victims, he embezzled USD 222,00 for personal reasons by paying USD 88,80,000, excluding approximately 60% shares of the Defendant.
3. In full view of the facts stated in its reasoning, the court below held that since the defendant agreed to use part of the proceeds from the sale of the shares as a brokerage commission with the victims but it naturally returned them to the victims if there occurs any circumstance that could not be paid a brokerage commission, since USD 222,00 without the consent of the victims on the date of receiving the proceeds from the sale of the shares, it can be recognized that the defendant embezzled money excluding the defendant's shares.
Based on the judgment of the court below, it found the primary charges of this case guilty.
4. However, it is difficult to accept the above determination by the court below for the following reasons.
A. According to the evidence duly adopted and examined by the first instance court and the lower court, the following facts are revealed.
(1) The Defendant and the victims shall make a blanket sale of 40% of their shares in red bean owned by them, and around February 8, 2012.