The prosecutor's appeal is dismissed.

1. Summary of grounds for appeal;

A. misunderstanding the facts or misunderstanding of the legal principles (as to embezzlement of the proceeds of a mobile phone opened), the Defendant sold 62 mobile phone devices to customers pursuant to an entrustment contract for the sales of mobile phone (hereinafter “instant consignment contract”) concluded with the victim E, and received KRW 41,422,80 as the proceeds of the sales. The above sales proceeds belong to the victim, who is the truster, at the same time as the Defendant received them, and if the Defendant used and consumed them at will, it is reasonable to view that the crime of embezzlement is established against the whole proceeds of the sales.

Nevertheless, the court below found the defendant guilty only for 16,406,165 won except the sales commission of the defendant, and acquitted the remaining parts. The judgment below erred by misapprehending the facts and legal principles as to the acquittal portion of the reasoning of the judgment below.

B. The lower court’s sentence (five months of imprisonment and one year of suspended execution) against an unfair defendant in sentencing is deemed to be too uneasible and unfair.

2. Determination

A. In the case of ordinary consignment sales, determination 1 on the misapprehension of the legal principles as to the assertion of misunderstanding the facts and misapprehension of the legal principles, if the money which the consignee purchased and sold the consigned goods and received by the consignee is attributable to the truster's ownership and the consignee refuses to consume or deliver them without permission, the crime of embezzlement is established. However, in a case where there is a special agreement as to the disposition of the proceeds, such as that the consignee and the consignee intend to distribute profits from deducting various expenses, fees, etc. from the sales proceeds, the sales proceeds shall not be deemed as having been sold and consumed or refused to deliver the consigned goods, and the crime of embezzlement shall not be established immediately (see, e.g., Supreme Court Decision 89Do813, Mar. 27, 190). 2) In light of the above legal principles, in light of the above legal principles, the court below's return to the instant case and examined it, based on the circumstances as