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The defendant shall be innocent.
Reasons
1. On September 25, 2015, the Defendant was paid KRW 3,000,000 from the victim C (62 tax) to the Defendant’s bank account (D) with the name of the Defendant, but the said money was erroneously remitted to the Defendant’s account due to mistake.
As such, the Defendant knowingly rejected the victim’s request for return of the money by December 15, 2015, without responding to the victim’s request for return of the money.
2. Determination
A. “Refusal of return” under Article 355(1) of the Criminal Act refers to an act of expressing intent to exclude the owner’s right against the stored goods. As such, in order to constitute embezzlement, the person who keeps another’s property is insufficient to simply refuse to return the goods, and the refusal of return is the act of embezzlement by taking into account the grounds for refusal of return and subjective intent.
The so-called "illegal acquisition" intent in embezzlement refers to the intention that a person who keeps another's property in his/her custody without a legitimate title to dispose of it as the person with a right to file a lawsuit against his/her intent to do so, and thus, the return was refused.
Even if there is a justifiable reason to refuse the return, an intention of unlawful acquisition cannot be deemed to have been made unless the return is made (see Supreme Court Decisions 98Do126, Jul. 10, 1998; 2003Do7487, Feb. 10, 2006). (b) According to the Defendant’s legal statement, witness E, F, and G’s legal statement, account details, and text notes, according to the Defendant’s legal statement, each legal statement, account details, and text notes, the F receives a request for payment of KRW 1,00,000 from her native H on behalf of the Defendant. ② The F has remitted KRW 1,00,000 to the bank account (D) of the Defendant’s name on September 19, 2015; the Defendant received KRW 1,000,000 from F on account of the Defendant; and the Defendant has received KRW 1,000,000 from the Defendant, and then he is the person who has received the k.
(a)bee;