(영문) 서울고등법원 2013.08.16 2013노875 | 리걸엔진

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(영문) 서울고등법원 2013.08.16 2013노875

특정경제범죄가중처벌등에관한법률위반(횡령)등

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The defendant's appeal is dismissed.

Reasons

Summary of Grounds for Appeal

When the defendant borrowed money from D, the defendant had the intention to repay and the ability to repay the money.

The sentence of the lower court on the Defendant of unreasonable sentencing (four years of imprisonment) is too unreasonable.

Judgment

The judgment of the court below on the assertion of mistake of facts found the following facts after examining the evidence adopted, i.e., ① it was difficult for the defendant to embling art goods received from the same victim and other persons at the time of lending the goods from the victim, or making a relatively small amount of money, so that he could not be repaid, and ② the defendant, in full view of the fact that the defendant received the art goods from the victim on behalf of the victim and sold the goods, but did not return the proceeds to the victim, and used most of the received money differently from the use notified to the victim, the court below held that the defendant is guilty of fraud.

Examining the evidence duly adopted and examined by the court below and the trial court in light of the records, the fact-finding by the court below is justified.

In addition, the following circumstances acknowledged by the record: ① even if the defendant expects that the AL museum business will recover investments or loans if the AL museum business will be successful, it cannot be deemed that the defendant had the intent or ability to repay to the defendant on the ground that there is no specific objective data that the AL will run the museum business, and thus, it cannot be deemed that the defendant had the intent or ability to repay to the defendant. ② The defendant borrowed money several times from the victim D to the AL under the pretext that the defendant would provide it to the AL, but used it for a personal purpose different from the other personal purpose, it cannot be deemed that the defendant had the intent or ability to repay to the defendant.

The judgment of the court below to the same purport.

유사 판례

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