The prosecutor's appeal is dismissed.

1. Even according to the contents of the performance agreement prepared by the Defendant, D, and E on November 22, 2011, the complainants are not entirely excluded from the marina business. Thus, the success of the project requires settlement to the effect that the Defendant is liable for losses each of the Defendant, D, and E by paying KRW 200 million to E or failure of the project and bearing losses each of 1/3 of the Defendant, D, and E. However, the Defendant’s refusal of the refund of the partner’s money prior thereto constitutes the crime of occupational embezzlement.

2. Determination

A. In full view of the evidence in the lower judgment, the lower court determined that ① Defendant, D, E, etc. agreed to operate H (hereinafter “the instant marina”) and agreed to take charge of the procedures for authorization and permission for the instant marina; ② around April 201, E deposited KRW 200 million into the new bank account under the name of the wife C, such as expenses related to authorization and permission of the instant marina, and site lease deposit, etc.; ③ the Defendant received the physical card from D, E, etc. and used approximately KRW 95,50,000 from April 201 to November 201, the Defendant used the said account from 00,000 to 10,000,000 won in terms of expenses related to authorization and permission and site lease for the instant marina; ② Defendant was consistently informed of the foregoing KRW 240,000,000,000 from 10,0000 to 20,0000,000 from 10,010.