The defendant shall be innocent.

On February 2017, the Defendant: (a) entrusted the sale of sound equipment from the victim D in the “C” located in Seo-gu, Seo-gu, Seocheon-gu; and (b) stored sound equipment (type 15 and KRW 3 million).

While the Defendant kept the sound devices for the victim, he/she sold three types of the said sound devices in a temporary and irregular manner, and received KRW 1.1 million from the price to deliver the sales proceeds to the victim, who is the truster, but did not deliver the proceeds to the victim, but embezzled KRW 1.1 million of the sales proceeds for personal purposes.

2. Determination

A. In the case of a consignment sale under the relevant legal doctrine, if a consignee sells and purchases the consigned goods and refuses to consume or deliver them at the customer’s own discretion, the crime of embezzlement shall be established. However, if there is a special agreement with regard to the disposition of the proceeds, such as that the consignee and the consignee intend to distribute profits from deducting various expenses, fees, etc. from the sale proceeds, the sales proceeds shall not be deemed to be the crime of embezzlement just because it sold the consigned goods and consumed or refused to deliver them (see, e.g., Supreme Court Decision 89Do813, Mar. 27, 1990). (b) According to the evidence duly adopted and examined by the court, it is recognized that D has entrusted the Defendant with the sale of 15 types of sound equipment, and the Defendant sold three types of sound equipment and received KRW 100,000 from the proceeds therefrom.

However, in this court, the witness D did not determine when the sales proceeds are to be paid to the Defendant when entrusting the sale of the above sound apparatus, that is, whether the sales proceeds would be paid when the entire sale of the sound apparatus or if some of the sale of the sound apparatus is sold, and there was no separate time limit for the sale, and the defendant should be paid for the sales proceeds.