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The prosecutor's appeal is dismissed.
Reasons
1. The defendant's arbitrary use of cash sales and credit card sales from the same business without the permission of F who is one of the partners is constituted a crime of embezzlement under the circumstance that the summary of the grounds for appeal did not have a certain production on the same business relationship. Therefore, the judgment of the court of the first instance that acquitted the defendant is erroneous in the misapprehension of legal principles or erroneous in the misapprehension of legal principles.
2. Summary of the facts charged of this case and determination of 1 deliberation
A. From May 15, 2014, the Defendant, along with F, G, H, and I, operated the pro rata of J J Co., Ltd. in the second floor of the D D Building in Seocho-gu Seoul Metropolitan Government (hereinafter “J J P P”) and kept the sales revenue.
1) While the Defendant was in the custody of KRW 606,00,000 from May 20, 2014 to May 30, 2014, the Defendant did not deposit it into a deposit account (K) in the name of the new bank JF, a corporate account, and embezzled by arbitrarily consuming it.
2) From May 27, 2014 to May 30, 2014, the Defendant embezzled KRW 3,006,000 by means of settling the accounts with a Jbuf’s card terminal, without settling the accounts with a Jbuf’s card terminal.
B. The burden of proving the facts charged in a criminal trial for the first instance judgment is to be borne by the public prosecutor, and the conviction is to be based on the evidence with probative value sufficient for the judge to have the truth that the facts charged are true beyond a reasonable doubt. Thus, if there is no such evidence, even if there is doubt as to the defendant's guilt, it shall be determined with the benefit of the defendant (see, e.g., Supreme Court Decision 2006Do735, Apr. 27, 2006). In light of the evidence submitted by the defense counsel and the witness H and I's respective legal statements, the only evidence submitted by the public prosecutor alone used 606,00 won or 600 won of cash sales as stated in the facts charged as the crime of embezzlement.