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The defendant's appeal is dismissed.
Reasons
1. Summary of grounds for appeal;
A. In light of the legal principles, since the place where the Defendant acquired the instant mobile phone is not a space under the exclusive control of a third party as a public toilet, the Defendant who acquired the instant mobile phone cannot be established for larceny, not for embezzlement of stolen, but for embezzlement. However, the lower court, which recognized the Defendant to receive larceny on a different premise, erred by misapprehending the legal doctrine, thereby adversely affecting the conclusion of the judgment.
B. The lower court’s sentence of unreasonable sentencing (one year of imprisonment with labor for six months and one year of suspended execution) is too unreasonable.
2. Determination
A. In order to establish the crime of embezzlement of stolen property, the possession is required to leave another person's possession and cannot be deemed to have yet been exceeded. The possession is not a deviation from possession. The possessor of an erroneous or lost property is not a deviation from possession when it is in a state where the possessor can recover it or a new possession is commenced.
In this case, according to the evidence duly adopted and examined by the court below, ① the victim set up a mobile phone in the toilet of this case, and was returned to find a mobile phone because five minutes have not yet passed since the victim set up a mobile phone in the toilet of this case, ② the victim was asked at the time whether the victim did not regard his own mobile phone in the toilet of this case; ③ the victim confirmed that only two persons including the defendant used the toilet after the victim used the toilet; ④ the victim was asked at the female-friendly cell and his cell phone of this case to return the mobile phone of the Defendant, ④ the victim was asked by the Defendant to return the mobile phone of the Gluri, and the victim was asked by the Defendant to return the mobile phone of the Bluri. However, according to each of the above facts acknowledged, the victim was admitted.