(영문) 서울고등법원 2020.05.28 2020노42 | 리걸엔진

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(영문) 서울고등법원 2020.05.28 2020노42

특정경제범죄가중처벌등에관한법률위반(횡령)

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The defendant's appeal is dismissed.

Reasons

1. Summary of grounds for appeal;

A. 1) The Defendant is the victim D Co., Ltd. (hereinafter “victim D Co., Ltd.”)

The Defendant did not take full charge of all the funds of the victimized Company, and the Defendant did not take over the victimized Company to embezzled the funds of the victimized Company, and related L and Co-Defendant B (hereinafter “B”).

(2) The above part of the crime was committed in relation to the crime of the No. 2, 3, 5, 7, 12, and 13 of the crime list No. 2, 3, 5, 7, 12, and H’s statements in the judgment of the court below, since the above part of the crime was committed to proceed with the dispatch business at the L’s horse to proceed with the dispatch business, it cannot be deemed as embezzlement and there was no intent to illegally obtain the defendant.

3) With respect to the crime in the part Nos. 1, 4, 6, 8 through 11 of the crime list Nos. 1, 6, and 11 attached to the judgment of the court below, the above part of the crime was executed upon the request of B that the money for the crime was needed to carry out a AD distribution business, and the procedure for promoting AD distribution business was actually carried out. Therefore, even if the defendant again borrowed and used part of the above money or failed to participate in AD distribution business after the execution of the above money, it cannot be deemed that the above money was embezzled, and there was no intention to illegally obtain the above money from the defendant. 4) In relation to the crime in the part No. 14, 15 attached to the judgment of the court below, the defendant withdrawn the above part of the crime for the purpose of paying the bonds with warrant held by the victim company, and thus, it cannot be deemed that the defendant embezzled

5. Nevertheless, the court below found all of the facts charged of this case guilty. In so doing, the court below erred by misunderstanding of facts or misunderstanding of legal principles.

B. The lower court’s sentencing is too excessive and unreasonable.

2. Determination

A. As to the assertion of mistake of facts, etc., the Defendant

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