The prosecutor's appeal is dismissed.

In light of the summary of the grounds for appeal (based on factual errors, misunderstanding of the legal principles) of the Commercial Act, the instant contract is a consignment sales contract under the Commercial Act, and the sales proceeds of the instant ginseng are owned by the victim, even if it cannot be deemed a contract for the entrustment of the snow company, it is apparent that the said ginseng sales proceeds belong to the ownership of the victim, the delegating, and the Defendant, when selling all the entrusted ginseng quantity, failed to settle the sales fees and arbitrarily consumed the sales proceeds of the instant case without paying the sales fees to the victim, the lower court erred by misapprehending the fact that the Defendant acquitted

Around January 3, 2011, the Defendant entered into a consignment contract with the victim E and the former North Korea Chang-gun, which was extracted from the victim E and nine-year-old ginseng from the victim E and the former North Korea, to sell the ginseng at the victim E and the former North Korea, and then paid money except sales fees.

The Defendant, from around that time to around November 201, kept for the victim the money excluding sales commission out of the ginseng sales proceeds from around October 6, 2011 to around April 201, and embezzled a total of approximately KRW 70 million by arbitrarily consuming the money to the victim.

Judgment

The nature of the relevant statutory consignment sale and purchase is to purchase or sell goods under the name of a third party and to receive remuneration for their purchase or sale under the name of a third party. As such, whether a contract constitutes a general sales and purchase contract or a consignment sales and purchase contract should be determined by focusing on its substance regardless of the name or formal language of the contract.

(Supreme Court Decision 2005Da6297 Decided May 29, 2008). In ordinary cases of consignment sale, the money which a consignee purchases and sells the consigned goods is owned by the consignor and the consignee refuses to consume or deliver it without permission.