(영문) 서울남부지방법원 2014.03.20 2013노1699

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(영문) 서울남부지방법원 2014.03.20 2013노1699

횡령

Text

The judgment of the court below is reversed.

A defendant shall be punished by imprisonment for not less than eight months.

However, the above punishment shall be imposed for two years from the date of the final judgment.

Reasons

1. Summary of grounds for appeal;

A. Since the victim of mistake of facts is in the same business relationship with the defendant or is not in the position of a joint manager, the defendant does not bear any obligation to settle the money deposited in each account under his/her name.

In addition, the crime of embezzlement is not established since the defendant consented to or approved after the transfer of money from the above account.

Nevertheless, the court below convicted the defendant by misunderstanding the facts.

B. The sentence imposed by the court below on the defendant (eight months of imprisonment) is too unreasonable.

2. Determination

A. Prior to the judgment on the grounds for appeal by the defendant ex officio, the prosecutor applied for the amendment of the indictment to add part of the facts charged against the defendant to the judgment of the court below. Since this court permitted this, the entire facts charged in this case against the defendant constitutes a single crime of embezzlement, since the act of embezzlement of the same contents as those before and after the amendment of the indictment is recorded as facts charged, it shall be deemed that the same case is overlapped in one indictment, and it constitutes an error in the entries in the indictment.

However, according to each of the above indictments, each of the embezzlements listed in 33, 49, 34, 50, 37, 52, 39, and 55 and 35, 35, 36, 51, 38, 53, 40, 56, 41, and 57, excluding the 500, the difference between 500 won and 35, cannot be said to be subject to additional adjudication because the remaining embezzlements are erroneously recorded.

Therefore, the subject of the trial of the political party is the embezzlement of the parts 1 to 48 and 54, including the sequence 36, 38, 40, 41, which was revised by adding 500 won to each 500 won in the facts charged before the amendment.

The original judgment based on the facts charged was no longer maintained.

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