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대구지방법원 2016.06.17 2015노2330
업무상횡령
Text

The defendant's appeal is dismissed.

Reasons

1. The gist of the grounds for appeal is that the Defendant’s agricultural head of the Tong was almost entirely managed by the victims as the official head of the Tong at the workplace, and the Defendant said that the amount of H investment should be collected first because the Defendant borrowed money from his parent and the head of the Tong. The victims transferred KRW 70 million out of the proceeds of H sale to the Defendant’s personal head of the Tong.

Of the total amount of KRW 120 million invested, the Defendant invested KRW 16 million, KRW 9 million by the victim C, and KRW 5 million by the victim D, respectively, and the Defendant acquired shares of KRW 88.3% of the H sale price. As such, it is reasonable for the Defendant to recover KRW 70 million out of the H sale price and recover KRW 70 million in accordance with the above shares ratio.

Nevertheless, the judgment of the court below which found the Defendant guilty of the facts charged of this case is erroneous and adversely affected by the judgment.

2. Determination

A. Since the business property belongs to the partnership of the partner, as long as the partnership exists, the partner is not entitled to dispose of his/her share of the business property at his/her discretion, and if he/she arbitrarily consumess his/her share of the proceeds obtained from the disposition of the business property at his/her discretion or during the custody of the proceeds received from the disposition of the business property, he

In addition, if the settlement of profits and losses was not made between one partner, a partner does not have the right to dispose of the property of the same kind of business belonging to the partner's negligence at his/her own discretion. Thus, if one partner arbitrarily embezzled the property of the same business during his/her custody, he/she shall be liable for the crime of embezzlement against the whole amount embezzled at his/her own discretion regardless of his/her share ratio (see, e.g., Supreme Court Decisions 2009Do7423, Oct. 15, 2009; 2010Do17684, Jun. 10, 201).

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