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(영문) 대법원 2016.12.15 2016도11929
업무상횡령등
Text

All appeals are dismissed.

Reasons

The grounds of appeal are examined.

1. As to the ground of appeal on occupational embezzlement

A. As to the grounds of appeal by Defendant A as to the act of embezzlement in relation to the act of occupational embezzlement of athletes training allowances, the prosecutor bears the burden of proving that there is an act of embezzlement as an act of realizing the intent of obtaining unlawful permission, and the burden of proving the act is based on strict evidence with probative value sufficient to make a judge a reasonable doubt. If there is no such evidence, even if there is no doubt of guilt against the Defendant, it is inevitable to determine the profits of the Defendant: Provided, That in a case where there is insufficient evidence to support that the Defendant used the place of use as alleged by the Defendant, such as (i) his whereabouts or location, or (ii) the fact that the funds used in the place of use as alleged by the Defendant were used for another purpose, and (iii) there is insufficient evidence to prove that the said funds were used for personal use, and (iv) it is difficult to prove that the Defendant embezzled the said funds with the intent of obtaining unlawful permission, and (iv) it is reasonable in light of the legal principles as seen in the lower judgment’s reasoning and evidence duly admitted by the Defendant A based on the aforementioned facts charged.

In so doing, contrary to what is alleged in the grounds of appeal, there were no errors by misapprehending the legal doctrine regarding the intent of unlawful acquisition in the crime of occupational embezzlement, or by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules

And this part of the facts charged by the court below.

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