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The judgment below
The guilty portion shall be reversed.
A defendant shall be punished by imprisonment for three years.
Reasons
1. The lower court acquitted the Defendant on the violation of the Control of Illegal Check Control Act among the facts charged in the instant case, dismissed the prosecution on the violation of the Labor Standards Act, and sentenced the Defendant to a four-year imprisonment by recognizing the remaining violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Embezzlement) and each crime of fraud.
However, since only the defendant filed an appeal regarding the guilty portion of the judgment below, the acquittal portion of the judgment of the court below and the dismissal of the public prosecution are already determined separately due to the lapse of the appeal period, and therefore the scope of the judgment of this court is limited to the conviction portion
2. Summary of grounds for appeal;
A. The court below found the Defendant guilty of the violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Embezzlement) that embezzled KRW 934,00,000 of the victim D Co., Ltd. (hereinafter “victim Co., Ltd.”).
However, there is an error of law of misunderstanding of facts as follows.
① Defendant’s wife K, sonV, and ASEAN had a claim for loans worth not less than one billion won against the victim company at the time. Of the above KRW 934,00,000, the Defendant transferred KRW 920,000 to the new bank account under the name of K to the said KRW 934,00,000 is the repayment of the Defendant’s debt owed by the victim company to K, and is a lawful act of performing the Defendant’s debt within the scope of representative director’s authority. As such, the Defendant’s intent of unlawful acquisition is not recognized, and thus, the Defendant cannot be held liable for the crime of occupational embezzlement.
(2) Lins nomenclatures
However, K used KRW 240,000,000 in order to repay the obligation to AE of the victim company from among the transferred KRW 920,000,000, and K used KRW 240,000 in order to obtain a loan under the name of K and used as the operating fund of the victim company, and the debt interest rate for the new bank is KRW 9,681,114.