(영문) 수원고등법원 2020.06.10 2020노179 | 리걸엔진

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(영문) 수원고등법원 2020.06.10 2020노179

특정경제범죄가중처벌등에관한법률위반(횡령)

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The judgment of the court below is reversed.

A defendant shall be punished by imprisonment for not less than one year and six months.

Reasons

1. Summary of grounds for appeal;

A. misunderstanding of facts 1) The embezzlements Nos. 3, 4, 6, 9, 10, and 11 listed in the separate sheet of crime as indicated in the judgment of the court below, and the embezzlements listed in the list of crimes as indicated in the above list of crimes, the defendant is the F Ground G (hereinafter “G”).

() On the premise that the Defendant and the victim are in the position of the custodian of the victim’s property as to the total amount of related profit distribution, the Defendant and the victim set 1/2 shares of the investment profits of the above building in consideration of the Defendant’s existing investment details, and thus, the crime of embezzlement is not established as to the 1/2 shares out of the above profits. Therefore, there is an error of mistake of facts in the judgment of the court below that found the Defendant guilty of this part of the charges. (2) As to the embezzlements listed in the list of crimes listed in the attached Table 2 and 7 in the judgment of the court below, the Defendant received from the Defendant on April 26, 2010 under the name of the proceeds with regard to the 3rd ground D (hereinafter “D”), but the above money was remitted from the Defendant on November 15, 2010 to K in cash.

Therefore, in calculating the amount of embezzlement, the above K equity should be deducted, but the judgment of the court below which found the guilty of this part of the facts charged is erroneous in the misconception of facts.

B. The sentence of imprisonment (two years of imprisonment) imposed by the lower court is excessively unreasonable.

2. Judgment on the assertion of mistake of facts

A. In full view of the following circumstances acknowledged by evidence duly adopted and investigated by the court below to determine the embezzlement Nos. 3, 4, 6, 9, 10, and 11 of the annexed crime list in the judgment of the court below, the share that the defendant agreed to pay to the victim with respect to the amount distributed by G shall be half of the share of 1/4 invested by the defendant.

유사 판례

-수원지방법원 2020.02.18 2017고합710

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-대전지방법원 2016.10.13 2016노1634

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