The judgment of the court below is reversed.

The sentence of sentence against the defendant shall be suspended.

1. Summary of grounds for appeal;

A. In the absence of the fact that the defendant returned all possessed items, such as the Nohbuk computer of the victims, and embezzled articles of the victims, the court below found the victims guilty of the charges of this case. The judgment of the court below is erroneous in the misapprehension of facts, which affected the conclusion of the judgment.

B. In light of the overall sentencing conditions of the instant case, the lower court’s punishment (one million won of fine) is too unreasonable.

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 has the custody of another’s property is not sufficient to simply refuse of return, and the refusal of return should be deemed as the act of embezzlement by taking account of the grounds for refusal of return and the subjective intent. In embezzlement, the so-called intent of unlawful acquisition refers to the intention to dispose of the property of another person as the owner without any justifiable title against the purport of embezzlement. If such intent of refusal of return is expressed outside the scope of objective recognition, the crime of embezzlement is completed.

Comprehensively taking account of the following circumstances revealed by evidence duly adopted and investigated by the Health Team, the lower court, and the first instance court as to the instant case, the Defendant refused a request from the victims for the return of goods owned by the victims and embezzled the facts without justifiable grounds.

① From April 14, 2012, the victims requested an investigative agency to return to the Defendant articles owned by the victims by telephone (such as Laborpt computers, books, employment-related documents, etc.; hereinafter referred to as “instant articles”), and on April 14, 2012.