The judgment of the court below is reversed.

The punishment of the accused shall be determined by three years and six months.

[Judgment on the Reasons for Appeal] The lower court found the Defendant guilty of the violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Embezzlement) and the fraud, and found the Defendant guilty of a part of the facts charged under the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Embezzlement). The lower court found the remainder as not guilty (not guilty in the grounds for appeal).

The court below sentenced a single punishment (four years of imprisonment) by viewing all the criminal facts found guilty as concurrent crimes under the former part of Article 37 of the Criminal Act.

The defendant appealed from the whole criminal facts which the court below found guilty on the grounds of mistake of facts or misapprehension of legal principles, and asserts in preliminary sentencing.

The prosecutor appealed on the whole criminal facts on the ground of an erroneous determination of facts or a misapprehension of the legal principle.

First of all, we examine mistake of facts or misapprehension of legal principles by item among the grounds for appeal by the defendant and prosecutor.

Defendant

Of the 2018 Gohap37 cases, the prosecutor bears the burden of proving that the act of embezzlement is an act of realizing the intent of unlawful acquisition in the crime of occupational embezzlement in the objective constituent elements of the violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Embezzlement) and the crime of mistake of facts related to the crime. Such proof is based on strict proof that makes the judge not have any reasonable doubt, and if there is no such proof, it is doubtful that the defendant is guilty even if there is no such proof.

Even if there is no choice but to judge the interests of the defendant.

(see, e.g., Supreme Court Decision 2013Do2510, Jun. 27, 2013). Meanwhile, in the crime of occupational embezzlement, the intent of unlawful acquisition is in breach of the occupational duty for the purpose of seeking the benefit of himself/herself or a third party, and thus, the property of another person.