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The prosecutor's appeal is dismissed.
Reasons
1. The summary of the grounds for appeal is that the victim suffered difficulties in substantially jointly operating the restaurant due to his residence, occupation or disturbance of the defendant, and does not agree to make an investment in money from the beginning, and there was a mutual agreement between the defendant and the victim.
Therefore, the judgment of the court below which acquitted the Defendant of the facts charged of this case is erroneous by misapprehending the legal principles, or by misapprehending the legal principles.
2. Determination
A. The summary of the facts charged in the instant case was a person who operated a restaurant with the trade name “F” on the second floor of Daegu-gu E, the Defendant entered into an agreement with the victim on February 2009 to pay 50% of the profits accrued from operating the said restaurant, instead of investing the amount equivalent to KRW 330 million in cash in the said restaurant in the said restaurant.
Nevertheless, on September 1, 2014, the Defendant entered into a contract with H to transfer the above restaurant at KRW 600 million without the consent of the victim. On September 1, 2014, the Defendant received KRW 600 million from the account in the name of the Defendant to the account of the Daegu Bank under the name of the Defendant and deposited for the victim by remitting the above H to the account of the money for the transfer on or around the 18th of the same month, and disbursed the amount equivalent to KRW 253,835,120 due to the delayed payment of wages to employees and the payment of goods. The remaining KRW 346,164,80 was settled with the victim or used with the consent of the victim, but at around that time,
B. The lower court determined as follows: (a) since an anonymous association member’s capital and other property invested by an anonymous association member for its business purposes is the property of the business operator, the business operator is not in the position of keeping another’s property; and (b) thus, (c)
Even if embezzlement cannot be established, there is a partnership agreement between the defendant and the victim, which can be viewed as a partnership under the Civil Act.
It shall be readily concluded.