The prosecutor's appeal is dismissed.

1. The summary of the grounds for appeal (misunderstanding of facts) (hereinafter “the instant game machine”) rejected the return without justifiable grounds, even though the rest of 80 games, other than the victim’s possession games, from among the 110 games that the Defendant returned to the Defendant, 30 games owned by the victim (hereinafter “the instant game machine”). Furthermore, there appears to be a circumstance that the instant game machine was disposed of to a third party). The justifiable reason for refusing to return in the crime of embezzlement is an element of determining the intention of unlawful acquisition, which is a subjective element. Considering the above circumstances, the Defendant refused to return the said game machine without justifiable grounds, thereby recognizing the intent of unlawful acquisition of embezzlement.

Nevertheless, the lower court found the Defendant not guilty of the facts charged of this case, thereby adversely affecting the conclusion of the judgment.

2. Determination

(a) A person who, having the custody of another person's property, embezzled or refuses to return such property, under Article 355 of the Criminal Act and relevant Acts and subordinate statutes, shall be punished by imprisonment for not more than five years or by a fine not exceeding 15 million won;

Article 133 of the Criminal Procedure Act (Return or Temporary Return of Seized Articles) (1) Seized articles, the continued seizure of which is deemed unnecessary, shall be returned by ruling even before the completion of the case by the defendant, and seized articles to be produced as evidence may be returned at the request of the owner, possessor, keeper, or presenter.

(2) Where an article seized only for evidence, is required to be used continuously by the owner or possessor, an article which is required to be used continuously, shall be photographing it, and be returned promptly after taking other necessary measures to preserve its original form.

Article 48 (Confiscation and Additional Collection) (1) of the Criminal Act (1) Any goods that are not owned by a person other than an offender or acquired by a person other than an offender with the knowledge of the fact after the offense may be confiscated in whole or in part:

1. Articles which have been provided or intended to be provided for criminal acts;

2. A thing produced by or acquired by means of criminal conduct;

3. The preceding.