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The judgment below
The guilty portion (excluding the rejection part of an application for compensation) shall be reversed.
Defendant shall be punished by imprisonment for three years.
Reasons
1. Summary of grounds for appeal;
A. Defendant - Of the judgment of the court below, the guilty portion 1) of the violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Embezzlement) (A) and the violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Embezzlement) were committed by the victims D and the Defendant, as joint investors, purchased the instant real estate from I to increase its value, and sell it and divide the proceeds therefrom. The sales contract of the instant real estate was
However, as the application for permission for land transaction regarding Nan Forest among the instant real estate was rejected by the competent authority, this part of the contract becomes null and void, and the contract part on the remaining land becomes null and void in entirety, barring any special circumstances, I had a duty to return the purchase price already received as unjust enrichment. However, I requested the Defendant to sell the instant real estate to a third party, who had no financial ability to fully consume the said money and return it.
In other words, the conclusion of a sales contract with the LAR to the instant real estate is made by entrustment by I, and it is not a consignment relationship between the defendant and the victim D.
Ultimately, the defendant is only obligated to return a certain amount in preparation for investment amount after deducting expenses, etc. from the victim D.
(2) Even if the Defendant’s status of embezzlement amount is recognized as a person who keeps the purchase money in custody for the victim D and the crime of embezzlement is established, the victim D’s first accusation amounted to KRW 40 million after deducting the Defendant’s high-priced expenses at the time of the victim’s accusation, KRW 110 million at the time of the first accusation, KRW 45 million paid to I through W, and KRW 60 million, excluding the amount of embezzlement, should be excluded from the amount of embezzlement. Ultimately, the amount of embezzlement amount is KRW 445 million.