The judgment of the court below is reversed.

A defendant shall be punished by imprisonment for six months.

Provided, That the above punishment shall be imposed for one year from the date this judgment becomes final and conclusive.

1. Summary of grounds for appeal;

A. Since misunderstanding of facts and misunderstanding of legal principles have been in consultation with the victim Hyundai Capital Co., Ltd., the victim would be entitled to transfer the ownership of a passenger car (hereinafter “the instant passenger car”), there was a justifiable reason to refuse to return the vehicle.

Nevertheless, the lower court erred by misapprehending the legal doctrine regarding the facts charged in the instant case.

B. The lower court’s sentencing (ten months of imprisonment, two years of suspended sentence) is too unreasonable.

2. Judgment on misconception of facts and misapprehension of legal principles

A. In the crime of embezzlement, "the custody of goods" refers to the state of de facto or legal control over the goods, and the custody shall be based on the consignment relationship. However, it is not necessarily necessary to be established by a contract such as loan of use, lease, delegation, etc., and may also be established by administrative management, custom, cooking, and good faith principle. Even if an assistant in possession under the Civil Act is a person in possession under the Civil Act, if the person exercises de facto control over the goods, it may be deemed as the subject

(See Supreme Court Decision 2008Do4859 Decided September 11, 2008). Meanwhile, “Refusal to return” under Article 355(1) of the Criminal Act refers to an act of expressing intent to exclude the owner’s right against the stored goods. Thus, in order to constitute embezzlement, the “Refusal to return” is insufficient merely by the fact that the custodian of another’s property refuses to return the property, and the refusal to return should be deemed as the act of embezzlement by taking account of the reasons for refusal to return and the subjective intent. The so-called intention of unlawful acquisition in embezzlement refers to the intent to dispose of another’s property as the owner without a legitimate title against the purport of embezzlement, and thus, even if the custodian refuses to return the property, if the return was not returned due to justifiable grounds, the intent of unlawful acquisition exists.