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(영문) 대법원 2018.04.26 2018도1948
업무상횡령등
Text

All appeals are dismissed.

Reasons

The grounds of appeal are examined.

1. On the grounds of appeal as to the Defendants’ respective occupational embezzlement, the first instance court found the Defendants not guilty of each of the instant occupational embezzlement charges against the Defendants, but the lower court reversed the first instance judgment and sentenced the Defendants guilty on the grounds as stated in its reasoning.

In light of the relevant legal principles and records, the lower judgment that found the Defendants guilty of each of the above charges, contrary to what is alleged in the grounds of appeal, did not err by exceeding the bounds of the principle of free evaluation of evidence in violation of logical and empirical rules, or by misapprehending the legal doctrine on the use of money in the crime of embezzlement, the property, the identity of a custodian, the status of a custodian, intent of unlawful acquisition and intent of unlawful acquisition, the admissibility and probative value of computer files, or by misapprehending the legal doctrine on the admissibility and probative value of documents, or by violating

2. On the grounds of appeal as to Defendant A’s occupational breach of trust, the first instance court acquitted Defendant A of the charges of occupational breach of trust of this case, but the lower court reversed the first instance judgment and convicted Defendant A of the charges of occupational breach of trust on the grounds as stated in its reasoning.

In light of the relevant legal principles and records, the lower court’s judgment that convicted Defendant A of the above facts charged, contrary to what is alleged in the grounds of appeal, did not err by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules, or by misapprehending the legal principles on the acquisition of and loss from occupational breach of trust, intentional or unlawful acquisition and intent of unlawful acquisition, thereby adversely affecting the conclusion of the judgment.

3. The court below erred by misapprehending the legal principles on sentencing factors under Article 51 of the Criminal Act by applying the sentencing guidelines, without considering the size of the victim company's business, the business promotion stage, the financing relationship and ownership relationship of the victim company, etc.

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