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The defendant shall be innocent.
Reasons
1. The Defendant: (a) operated a travel company, “A” and received KRW 400,000 from seven victims including victims E, respectively, by offering Jeju-do travel goods to the victim E in the business office around March 22, 2014; and (b) received KRW 400,000 from each of the seven victims including the victim E in the business office of “C” located in the business office
5. Around 10.10. Around that time, the victims notified of the rescission of the travel contract and kept 2.8 million won for the victims, the victims embezzled arbitrarily by consuming other customers' travel deposit return, etc.
2. Determination
A. In the area of economic activity governed by the principle of private autonomy, enforcing a penal law prior to the resolution of disputes arising from civil means in the area of economic activity is likely to infringe on the freedom of individuals by excessive intervention and proportionality of the penal authority, as well as to bring about a negative effect that is reasonable and autonomously distorted adjustment of interests in individual areas (see, e.g., Supreme Court en banc Decision 2008Do10479, Jan. 20, 201). Specifically, in order for embezzlement to be established, the property that became the object of embezzlement requires the property owned by another person for whom the delegating is received by delegation of the business process. Whether the money received for the delegating upon delegation of the business process should be determined by the nature of the legal relation causing the receipt and the intention of the party concerned.
(See Supreme Court Decision 2005Do3627 delivered on November 10, 2005, etc.). B.
In light of the records of this case, the following facts are revealed: ① the Defendant was a person operating a travel agency; ② the Defendant proposed the victim E to “the travel in Jeju-do (hereinafter “the travel in this case”) containing all expenses of KRW 400,000 per capita during the 2-day period from May 4, 2014 to June 6, 2014 (the investigation records 4 pages, 23 pages); ③ the victims paid the Defendant a total of KRW 4,80,000 per person (40,000 per person).