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(영문) 서울고등법원 2016.04.28 2015노2909
특정경제범죄가중처벌등에관한법률위반(횡령)
Text

The judgment of the court below is reversed.

The defendant is innocent. The summary of this judgment shall be notified publicly.

Reasons

1. Summary of grounds for appeal;

A. In fact, a sales store contract entered into with the misunderstanding of the legal principles and the victim and an entrustment contract are continuous goods supply contract rather than a consignment sale contract, and the goods supplied by the victim are owned by the defendant, and the sales price is also owned by the defendant.

Even in the case of a family consignment sale contract, the settlement of the sales price of the goods must be made, and it is difficult to regard the sales price of the goods as owned by the injured party until such settlement is made.

B. The victim understood the occurrence of the outstanding amount of the instant case

must be viewed.

In addition, the court below erred by misapprehending the legal principles or misunderstanding the facts.

B. The punishment sentenced by the lower court (two years of imprisonment) is too unreasonable.

2. Determination of misapprehension of the legal doctrine and mistake of facts

A. The summary of the facts charged in the instant case is the representative director of E Co., Ltd. (hereinafter “E”) established for the purpose of Internet clothes sales business.

On October 19, 2005, the Defendant entered into a sales contract with the Victim F Co., Ltd. (hereinafter “F”) on the condition that “F E is designated as a seller and supplied goods to E, and “E is obligated to comply with F’s demand for return of inventory goods and horizontal mobility,” and “E is obligated to comply with F’s demand for return of inventory goods and horizontal movement.”

On November 20, 2006, by amending an existing contract partially, and between F and F, “The ownership of the good is held by F prior to payment of monetary consideration for the good so supplied shall be subject to prior written approval from F if the good is taken out, and F shall determine and supply the quantity and type of the good to be supplied to the sales store by taking into account the size of the sales store, characteristics of sales and sales, sales performance, consumer preference, and deposit status, and E shall sell the card.

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