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(영문) 서울고등법원 2012.12.21 2012노2750
특정경제범죄가중처벌등에관한법률위반(횡령)등
Text

The defendant's appeal is dismissed.

Reasons

1. Summary of grounds for appeal;

A. Regarding the part of the violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Embezzlement), in light of the fact that it is impossible for the president to execute the budget of a relatively large amount in addition to the daily expenses, such as personnel expenses, during the president’s business vacancy period, and there is a ground for the defendant to have calculated roughly KRW 500 million for his occupancy in M, there was no intention to obtain unlawful acquisition of KRW 50 million against the defendant. ② Meanwhile, on June 23, 2010, the defendant brought about KRW 50 million out of the instant loan, and deposited KRW 150 million into the Japanese bank account (V) in the name of the defendant, and deposited the remainder KRW 350 million in the custody of the defendant as a personal account at that time, while the defendant kept the balance of KRW 100 million with the defendant’s capital at that time, the defendant stored in the Japanese bank account at that time.

“The intention was that the Defendant was actually kept in cash, and there was only KRW 2.5 million. However, even if the intention of illegal acquisition was recognized solely on the basis of the withdrawal of domestic cash withdrawals, the intention of illegal acquisition cannot be recognized unless it was used for other purposes in the case of the above 2.5 million won deposited in the account and returned during the custody at least, unless it was used for other purposes. ③ In addition, inasmuch as the amount of KRW 50 million was actually transferred from the Japanese bank account to the account of “corporate E” (hereinafter “E”), it cannot be deemed that the Defendant was the money owned by the Defendant, out of KRW 3.5 million remaining after the deposit in the Japanese bank account of the Defendant, and the remittance of KRW 10 million to the Defendant’s wife cannot be deemed as the realization of the intention of unlawful acquisition.

With respect to the breach of trust in relation to the use of dics hospital expenses, the defendant's dignity maintenance expenses amounting to 5,952,170 won at the hospital expense of the defendant.

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