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The prosecutor's appeal is dismissed.
Reasons
1. Summary of grounds for appeal;
A. misunderstanding of facts and misapprehension of legal principles (the part concerning occupational embezzlement) Defendant’s act of paying money to the president and the president of E constitutes criminal acts corresponding to bribe offering or misappropriation, and according to related precedents, such act cannot be deemed justifiable as an act for the company’s interest. Therefore, Defendant’s criminal intent of embezzlement and intent of unlawful acquisition is sufficiently recognized.
B. The sentence sentenced by the lower court to the Defendant (the suspended sentence of KRW 5 million) is too uneased and unfair.
2. Determination
A. Determination of misunderstanding of facts and misapprehension of legal principles (the part concerning occupational embezzlement) 1) The relevant legal doctrine refers to an intention to dispose of another person’s property without authority, as if the person were to own or own another person’s property, in violation of the purpose of entrustment, with the intention of having the person who keeps another person’s property in his/her own or third party’
Therefore, in cases where a custodian disposes of property against the owner’s interest for his/her own or a third party’s interest, the intent of unlawful acquisition of the property may be recognized. However, in cases where the custodian disposes of the property for the owner’s interest, barring any special circumstance, the intent of unlawful acquisition of the property cannot be recognized (see Supreme Court Decision 2013Do658, Aug. 30, 2016). 2) The lower court, based on the above legal doctrine, explained in detail various circumstances recognized by the record (see Supreme Court Decision 4 to 7th page of the lower court’s decision). In full view of this, it is reasonable to view that the delivery of each U.S. dollars to E/C Chairperson and the president on November 2015 and February 17, 2016, it is difficult to recognize the intent of unlawful acquisition, which serves as the premise of occupational embezzlement, within a reasonable scope for the benefit of the company, and thus, acquitted of the facts charged in the instant case.
(b).