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The judgment below
The guilty portion shall be reversed.
The defendant is not guilty. The defendant is dismissed.
Reasons
1. Summary of grounds for appeal;
A. Defendant 1) misunderstanding of facts and misunderstanding of legal principles (the point of occupational embezzlement by the Defendant on June 30, 2010), the Defendant, rather than for personal interests, lent KRW 300 million to O for the benefit of the Victim L Co., Ltd. (hereinafter “victim”) (hereinafter “victim”) so there was no intention of unlawful acquisition.
2) At the time of sentencing, the Defendant had claims against the victimized company in excess of KRW 10 billion, and at any time there was no risk of incurring damages, since the victimized company could set off its claims against the Defendant at any time.
Since the loan was returned including interest, damage was restored.
The defendant has carried out funds transparently while operating the damaged company.
Considering these circumstances, the sentence of the court below (two years of suspended sentence in October) is too unreasonable.
B. In full view of the following: (a) the Defendant and G’s reasons for appeal submitted after the lapse of the deadline for submitting a statement of reasons for appeal shall be deemed to be within the scope of supplement to the statement of reasons for appeal); (b) the circumstances leading up to the Defendant’s Dong business and G’s contribution to money; (c) the payment period for the contributed money; (d) the absence of interest agreement; and (e) the details that the Defendant stated on the nature of money in the relevant civil litigation (the Suwon District Court 2013 combined 15251), etc., the Defendant and G’s contribution money is not a loan but an investment fund; and (c) the act of withdrawing funds
It is also unclear the basis for calculation of the amount contributed by the defendant to the damaged company.
AB testified at the court below was prosecuted by perjury (Seoul District Court 2015, 536, Sungwon-nam Branch 2015, 536).
There is no substantial difference between the part judged by the court below as guilty and the part not guilty in terms of behavior mode, flow of funds, and the defendant's intention.
2. Determination:
A. The lower court’s determination on the Defendant’s misunderstanding of the facts and misapprehension of the legal doctrine was 1).