The judgment below is reversed, and the case is remanded to the Incheon District Court.

The grounds of appeal are examined.

1. Examining the evidence duly admitted by the first instance court, which maintained the reasoning of the lower judgment as to the fraud, the lower court’s determination that this part of the facts charged is guilty on the grounds as stated in its reasoning is justifiable.

There is no error of exceeding the bounds of the principle of free evaluation of evidence in violation of logical and empirical rules, or of misapprehending the relevant legal principles.

2. As to occupational embezzlement

A. In the crime of embezzlement, the intent of unlawful acquisition refers to the intent of a custodian of another’s property to dispose of the property without authority for his/her own or a third party’s interest in violation of the purpose of entrustment. As such, in cases where the custodian disposes of the property for the benefit of his/her own or a third party, not for his/her own or a third party’s interest, barring any special circumstance, the intent of unlawful acquisition cannot be recognized (see Supreme Court Decision 81Do3009, Mar. 9, 1982, etc.). In a case where the Defendant denies the intent of unlawful acquisition due to his/her internal intent, the fact constituting such subjective element is bound to prove by the method of proving indirect facts or circumstantial evidence relevant to the intent of acquisition (see, e.g., Supreme Court Decision 2007Do5899, Jun. 24, 2010). The fact that the act of embezzlement as an act of realizing the intent of unlawful acquisition is proven to the extent that the prosecutor bears strict probative value of evidence.

If there is no such evidence, even if there is suspicion of guilt against the defendant, it is inevitable to determine it as the interest of the defendant (see Supreme Court Decision 94Do998 delivered on September 9, 1994, etc.). B. The summary of the facts charged in this case is the Gyeyang-gu Incheon apartment (hereinafter “instant apartment”).