The judgment below is reversed, and the case is remanded to Daejeon District Court Panel Division.

The grounds of appeal are examined.

1. For the establishment of the crime of occupational embezzlement, a person who keeps another’s property in breach of his/her occupational duty with the intent of unlawful acquisition and thus, shall refuse to confiscate or return the property (Articles 356 and 355(1) of the Criminal Act). Here, “an intention of unlawful acquisition” refers to an intention of disposal in fact or in law, such as where a person who keeps another’s property owns another’s property in violation of his/her occupational duty for the purpose of pursuing his/her own interest or a third party’s interest.

(See Supreme Court Decision 2001Do5439 Decided February 5, 2002, etc.). “Refusal to return” in embezzlement refers to an act of expressing intent to exclude the owner’s right against the custodian’s goods. As such, the crime of embezzlement is not established solely on the fact that the custodian of another’s property simply refuses to return, and the fact that the custodian of another’s property refuses to return by taking account of the reasons for refusal to return, subjective intent, etc., the act of refusal to return can be deemed as the same as the embezzlement.

(See Supreme Court Decision 2003Do7487 Decided February 10, 2006, Supreme Court Decision 2008Do8279 Decided December 11, 2008, etc.). 2. The court below acknowledged that the defendant, as the representative director of D (hereinafter "D") who is a controlled entity of the commercial building of this case, entered into a lease contract with the divided shop on behalf of the victims who are sectional owners, refused to return the lease deposit and rent from the lessee who received the lease deposit and the rent from the lessee who was in business custody for the victims, and refused to return the lease deposit under the pretext of the management expenses, special management expenses, and development expenses, and it is not clear whether the victims bear the obligation to pay the above management expenses, etc. against D, and there is no agreement between D and the victims that the lease deposit and the rent are appropriated for the repayment of obligations such as the above management expenses.