(영문) 서울동부지방법원 2016.09.29 2016노1086

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(영문) 서울동부지방법원 2016.09.29 2016노1086

업무상횡령

Text

The defendant's appeal is dismissed.

Reasons

1. Summary of grounds for appeal;

A. The same year as of April 24, 2015, among the facts charged in the instant case by mistake of fact

4. 27. A total of KRW 15,00,000 for each embezzlement was withdrawn by the Defendant at the direction of G and delivered to him/her, and in the same year.

5.4. The same year as the KRW 4 million out of the amount of 10 million embezzled;

5. As the Defendant disbursed 14 million won in total as down payment for mechanical production necessary for the business of the victim company, even though the Defendant did not embezzled that part of the facts charged, the lower court found the Defendant guilty of this part of the facts charged and adversely affected the conclusion of the judgment by misapprehending the facts.

B. The sentence of the lower court (one hundred months of imprisonment) is too unreasonable.

2. Determination

A. Determination on the assertion of mistake of fact 1) General legal doctrine refers to the intent to acquire unlawful money in embezzlement for the purpose of pursuing the benefit of himself or a third party, as if he owns the property of another person in violation of his occupational duty, or to dispose of it under the law. This constitutes a subjective element where the defendant denies it, which constitutes an internal deliberation intent, and where the defendant denies it, is bound to prove it by the method of proving an indirect or circumstantial fact that has a substantial relation to the fact given the nature of an object. Thus, under the circumstances where the location or use of the money in custody was not revealed even though the money in custody was all known, there is a lack of evidence to acknowledge that the defendant used the money in the location of the defendant's assertion, such as where it was impossible to explain the location or use, or it was revealed that the money used in the location of the defendant's assertion was used for a fund different from the money in question, and there is a lack of evidence to prove that the defendant used the money in his personal use.

유사 판례

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-서울동부지방법원 2015.03.27 2015노12