The prosecutor's appeal is dismissed.

1. The summary of the grounds for appeal is that since the Defendant jointly managed C and B (hereinafter “victim”) with the victim Company C, the contract price received in the name of the victimized Company and the account in the name of the victimized Company constitutes the ownership of the victimized Company.

Nevertheless, the court below held that the defendant was in the custody of the damaged company.

The judgment of the court below which acquitted the defendant on the ground that he/she has no intention to commit the crime of embezzlement, is erroneous in the misapprehension of facts, which affected the judgment.

2. Determination

A. The judgment of the court below is sufficient to view that the Defendant entered into an agreement with the victim company holding a construction business license to receive construction works under the name of the corporation and to pay 4 to 5% of the sales amount of construction works for the victim company in return. ② Whether the agreement is legally effective or not, the remainder of construction works excluding the sales amount of a name-based loan agreement between the parties to the agreement is considered to be the money to be attributed to the actual contractor, the nominal borrower. ③ The victim company created and provided the separate account of the D Bank and E Bank (hereinafter “the separate account”) separately from the existing corporate account, and the above separate account was deposited only by the Defendant. ④ It is sufficient to view that the Defendant was involved in the operation of the victimized company. However, if the Defendant appears to have received construction works under the above installment agreement or continued to receive new construction works while maintaining the above agreement, it appears that the remainder of the above separate account belongs to himself/herself, taking into account the following factors: