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(영문) 대법원 2016.09.28 2016도6900
업무상횡령등
Text

The appeal is dismissed.

Reasons

The grounds of appeal are examined (to the extent of supplement in case of supplemental statements in the grounds of appeal not timely filed).

Criminal facts have to be proved to the extent that there is no reasonable doubt (Article 307(2) of the Criminal Procedure Act). However, the preparation of evidence and the probative value of evidence conducted on the premise of fact-finding belong to the free judgment of the fact-finding court (Article 308 of the Criminal Procedure Act). For the reasons stated in its reasoning, the lower court is justifiable in the first instance judgment that the relationship between the Defendant and the victim constitutes a partnership business relationship and the victim withdrawn from the partnership business relationship.

In addition, the defendant's intent to commit occupational breach of trust or occupational embezzlement and intent to obtain illegal acquisition is not recognized, and the defendant's act of offering collateral causes the risk of property damage.

Based on the judgment, we did not accept the grounds for appeal for mistake of facts and misunderstanding of legal principles.

The allegation in the grounds of appeal disputing the determination of facts by the lower court is merely an error in the determination of the evidence and probative value of the lower court that actually belongs to the free judgment of the fact-finding court. In addition, examining the reasoning of the lower judgment in light of the aforementioned legal principles and the relevant legal principles as indicated in the lower judgment, and the duly admitted evidence, even if the grounds of appeal are considered as the grounds of appeal in the instant case premised on the establishment of a partnership relationship on May 1, 2007, the lower court did not err by misapprehending the legal principles on the undisclosed association and partnership relationship, the validity of the agreement on the same business as the violation of the Medical Service Act, the wage, the withdrawal from the partnership relationship, the illegal cause of violation of the agreement on the same business, the withdrawal from the partnership relationship, the custodian of the occupational embezzlement, the intentional or unlawful acquisition and intent of the victim, the presumed consent of the victim, the occurrence of the loss of the breach of trust,

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