The defendant's appeal is dismissed.

1. Summary of grounds for appeal;

A. The victim merely invested in the instant health club and the Defendant entirely operated the instant health club. As such, the relationship between the Defendant and the victim with respect to the operation of the instant health club is not the relationship between the Defendant and the victim, but the relationship between the undisclosed association and the undisclosed association.

Therefore, the defendant was not in the position of the custodian of another's property.

B. The Defendant and the victim’s relationship with respect to the operation of the instant health club was in the same trade relationship.

The relationship between the defendant and the victim was changed into the relationship between the undisclosed association and the undisclosed association since the victim has actually withdrawn from the partnership around January 2012.

Therefore, the defendant was not in the position of the custodian of another's property.

C. Also, the relationship between the defendant and the victim has been maintained up to now.

Even if the Defendant sold the instant health club, it was the best measure to prevent the loss caused by the operation of the instant health club, and thus there was no intention to acquire illegal profits in embezzlement.

2. Determination

A. Whether the Defendant and the victim were in a relationship similar to an anonymous association or an anonymous association falls under the partnership-ownership of union members, and thus, if one of the union members voluntarily consumed the amount acquired by the disposal of the union’s property, the crime of embezzlement cannot be exempted. This legal doctrine also applies to a so-called internal association whose relationship is internally and externally revealed, but whose relationship is not externally revealed.

(See Supreme Court Decision 2009Do7423 Decided October 15, 2009, etc.). However, in cases of an anonymous association, unlike such an association or internal association, the money and other property invested by the undisclosed partner for business purposes becomes the property of the other party, and thus, the relevant business operator is not in the position of the person who keeps another’s property.