(영문) 인천지방법원 2016.06.16 2016노449 | 리걸엔진

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(영문) 인천지방법원 2016.06.16 2016노449

횡령

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The defendant's appeal is dismissed.

An application for remedy by an applicant for compensation shall be dismissed.

Reasons

1. Summary of grounds for appeal;

A. Although the misunderstanding of fact used 97 million won out of the amount loaned by the victim as collateral to pay the Defendant’s personal debt, it does not constitute embezzlement by arbitrarily consuming the amount of partner’s debt, since it was used with the consent of the victim.

B. The sentence sentenced by the lower court to the Defendant (one year of imprisonment) is too unreasonable.

2. Judgment on the grounds for appeal

A. In full view of the following circumstances revealed by the lower court’s judgment and the evidence duly admitted and investigated by the trial court, the Defendant’s arbitrary consumption of KRW 97 million out of the trade partner amount without the victim’s consent as stated in the judgment below can be fully recognized. Thus, this part of the Defendant’s assertion is without merit.

1) The Defendant and the victim agreed to contribute to the business of raising livestock farms and breeding livestock farms by determining the ratio of profit distribution to 50:50; however, the victim invested KRW 150,000,000 which was granted a loan to the real estate owned by the victim as collateral, and the Defendant agreed to contribute to the chickens, technology, etc. in possession.

The victim's invested money was a plan to establish a corporation to promote the same business and to have facilities such as experience farms and breeding farms.

2) While the victim appeared as a witness at the investigative agency as well as at the court below, the victim did not consent to use the amount of KRW 97 million out of the partner's money to pay his/her personal debt.

A consistent statement was made on August 2, 2012, that “the Defendant was prepared with a fair certificate of intent to pay 97 million won and interest thereon,” with the exception of money used for the same business, and there was no circumstance to suspect the credibility of the victim’s statement.

3) The Defendant does not run a month in which the loan was deposited, and thus, operates a partnership business with KRW 97 million.

유사 판례

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