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(영문) 서울중앙지방법원 2013.06.20 2013노703
업무상횡령
Text

The judgment of the court below is reversed.

Defendant shall be punished by a fine of KRW 2,500,000.

The above fine shall not be paid by the defendant.

Reasons

1. Summary of grounds for appeal;

A. The judgment of the court below which found the defendant guilty of the crime of occupational embezzlement of this case in the absence of the fact that the C organization, a non-profit non-profit non-governmental organization (hereinafter referred to as “C”) used the donations voluntarily for personal purposes during the occupational storage, and embezzled them.

B. The lower court’s sentence of unreasonable sentencing (fine 3,00,000) is too unreasonable.

2. Judgment on the assertion of mistake of facts

A. In the crime of occupational embezzlement, the intent of unlawful acquisition refers to the intent to dispose of the property of another person, which is in violation of his/her duties for the purpose of seeking the benefit of himself/herself or a third party, such as that of his/her own possession. This refers to the intention to dispose of the property of another person, which belongs to the internal deliberation and where the defendant denies it, the fact constituting such subjective element shall be proven by means of proving an indirect fact or circumstantial fact which has

In this regard, if there is a lack of evidence to acknowledge that the money was used in the Defendant’s use of the money for personal purposes, and there is a lack of evidence to prove that the money was used in the Defendant’s use of the money, such as the Defendant’s whereabouts or location of the money, or the funds used in the Defendant’s use of the money, under the circumstances in which the whereabouts or location of the money was unknown even though the money was in his custody as entrusted, it can be inferred that the Defendant embezzled the money with the intent of unlawful acquisition, in case where there is a lack of evidence to prove that the Defendant used the money for personal purposes.

(see, e.g., Supreme Court Decision 2008Do6756, Jun. 24, 2010). In addition, in the crime of occupational embezzlement, the intent of unlawful acquisition is to return, compensate, or preserve the embezzlement ex post facto.

Even if this is recognized, there is no obstacle.

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