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The judgment below
Of them, the part on Defendant B shall be reversed.
Defendant
B A person shall be punished by imprisonment for a year and six months.
(b).
Reasons
1. Summary of grounds for appeal;
A. misunderstanding of facts or misapprehension of legal principles - 75,650,000 won that the Defendants withdrawn from the deposit account of the victim G company and 79,344,144 won that the Defendants withdrawn from the deposit account of the victim H company was used as KRW 450,000 in the amount of paid-in capital increase of the victim G company. This method is because the use of paid-in capital was approved by the shareholders of the victim company by omitting the procedure of distributing the business profits of the victim G company to the shareholders and using them as the payment for paid-in capital increase of the victim company.
Therefore, even though there was no intention to obtain unlawful profits from the above withdrawals from the Defendants, the court below found the Defendants guilty of this part of the facts charged and erred by misapprehending the legal principles.
B. The punishment sentenced by the court below to the defendants (Defendant A: 10 months of imprisonment, 2 years of probation, 80 hours of community service, 1 year and 6 months of imprisonment) is too unreasonable.
2. Determination
A. In determining the misunderstanding of facts or legal principles, the intent of unlawful acquisition in the occupational embezzlement refers to the intent to dispose of another person’s property in breach of his/her occupational duty as his/her own property for the purpose of seeking the benefit of himself/herself or a third party, and there is an intention to return or compensate after the fact.
The intention of illegal acquisition shall not be deemed to exist.
In addition, the crime of embezzlement is established when the intent of the above unlawful acquisition was finally expressed at the outside. Thus, the person who committed the crime of embezzlement had a separate monetary claim against the owner of the goods.
Even if there are no special circumstances, such as setting-off prior to the crime of embezzlement, such circumstance alone cannot affect the crime of embezzlement already established (see, e.g., Supreme Court Decision 2013Do15895, May 16, 2014). In the instant case.