(영문) 인천지방법원 2012.12.27 2012노2395 | 리걸엔진

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(영문) 인천지방법원 2012.12.27 2012노2395

횡령

Text

The judgment below

Part of the compensation order, except the compensation order, shall be reversed.

The defendant shall be punished by imprisonment with prison labor for a year.

Reasons

1. Summary of grounds for appeal;

A. The court below in violation of the amendment procedures for the amendment of the indictment made at will without going through the amendment of the indictment, and there is an error of finding the court below as a crime of embezzlement of 27 households of the apartment of this case without notifying the victim of the agreement to notify in advance, even though the defendant made a disposition on 28 households of the Chungcheong-gun D apartment (hereinafter "the apartment of this case") by modifying part of the indictment of this case.

B. In the event that the victim and the defendant sell the apartment of this case, there was no agreement to inform the victim of the fact in advance or ex post facto. Rather, the victim was given the defendant a comprehensive disposal authority for the apartment of this case. The defendant's disposal of the 27 household units of this case for the benefit of the victim cannot be recognized as a criminal intent of embezzlement or an intention of unlawful acquisition, and the defendant and the victim suffered damage by forming a kind of association should be deemed as a partnership.

Nevertheless, the court below convicted the defendant by misunderstanding facts or understanding the legal principles.

C. The sentence of imprisonment (one year of imprisonment) imposed by the court below on the defendant is too unreasonable.

2. Determination

A. 1) Determination on the assertion of violation of the procedures for Amendments to Bill of Indictment 1) In a case where there is no concern that substantial disadvantage may be inflicted on the defendant’s exercise of the defendant’s right to defense, it does not contravene the principle of no accusation even though the court recognized facts different from those of the facts charged without going through the procedures for Amendments to Bill of Indictment to the extent identical to the facts charged (see, e.g., Supreme Court Decision 2011Do1651, Jun. 30, 201). In addition, there is

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