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The judgment below
The guilty part shall be reversed.
Of the facts charged in the instant case, the embezzlement against Defendant A, and Defendant.
Reasons
1. Summary of grounds for appeal;
A. Defendant A1) was established with a view to securing the Defendants’ claim for the return of investment deposits. Defendant A’s right to collateral security on behalf of other creditors is not the instant collateral security but the subordinate collateral security. Defendant A merely transferred his claim on the remainder other than the amount that Defendant A could have been paid with priority upon the request of the claim group, and thus, Defendant A cannot be deemed to have agreed to provide the instant collateral security to the claim group as joint property based on these circumstances.
3) Even if Defendant A had his creditor M receive an order of seizure and assignment of the right to claim a dividend payment based on the instant right to collateral security, the right to claim a dividend payment cannot be the object of embezzlement because it is not a property, and even if M received a dividend payment and thereby Defendant A keeps a part of the right to claim a dividend payment, it is only a monetary consignment relationship between Defendant A and M, and thus, it does not constitute embezzlement against the claim group. (B) According to the facts charged in the instant case, Defendant B received and embezzled dividends by withdrawing N’s claim, its creditor, and thus, Defendant B should specify the amount of damage to the crime of embezzlement by excluding the amount of actual claim of N, and the facts charged did not properly specify the amount of damage.
2) According to the facts charged in the instant case, the lower court, without going through the amendment procedure in the indictment, conducted deliberation and determination on the premise that the N did not have any claim against Defendant B at all differently from the facts charged in the instant case. 3), it is clear that N’s dividend is a deposit for 25 creditors, but did not participate in the lawsuit of demurrer against distribution.