(영문) 대전고등법원 2018.05.18 2017노532 | 리걸엔진

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(영문) 대전고등법원 2018.05.18 2017노532

특정경제범죄가중처벌등에관한법률위반(횡령)

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The judgment of the court below is reversed.

A defendant shall be punished by imprisonment for three years.

Reasons

1. The summary of the grounds for appeal (unfair sentencing) of the lower court’s sentencing (four years of imprisonment) is excessively unreasonable.

2. The Defendant embezzled funds of KRW 1.6 billion over several years by taking advantage of the merchant’s status of managing the merchant’s deposits. Considering the fact that the amount of damage exceeds KRW 1.6 billion, even if the amount of partial return is considered, the amount of damage not recovered is about KRW 900 million, the nature of the crime was serious, such as committing several times for a period exceeding five years, and the victim’s company wanting to be punished by the Defendant, it is necessary to impose strict liability corresponding to the Defendant.

However, the court below's punishment against the defendant is unfair on account of the following factors: (a) the defendant led to his confession of the crime and reflects the damage; (b) paid KRW 44 million in cash in addition to the amount reflected in the court below; (c) given up his retirement allowance claim amounting to approximately KRW 23 million; and (d) there was no previous conviction for the same kind of crime and no record of having been sentenced to a suspended sentence or a heavier punishment; and (c) considering the circumstances favorable to the defendant; and (d) taking into account the equity of both punishment and similar cases committed in the arguments of this case, such as the defendant's age, career, sexual behavior, environment, motive and circumstance of the crime; and (e) the circumstances after the crime.

3. In conclusion, the judgment of the court below is reversed in accordance with Article 364(6) of the Criminal Procedure Act on the grounds that the defendant's appeal is with merit, and the judgment below is ruled again after pleading as follows.

[Grounds for a new judgment] The summary of facts constituting an offense and evidence recognized by the court and the summary of the evidence are as stated in each corresponding column of the judgment below, and thus, they are cited in accordance with Article 369 of the Criminal Procedure Act.

Application of Statutes

1. Article 3 of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes.

참조조문

-특정경제범죄 가중처벌 등에 관한 법률 제3조

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