The judgment of the court below is reversed.

A defendant shall be punished by imprisonment for not less than one year and six months.

Summary of Grounds for Appeal

The victim of misunderstanding of facts and misunderstanding of legal principles agreed that the defendant shall contribute money to trade of used cargo vehicles and distribute profits from the above trading business.

The Defendant and the victim were in the relationship of anonymous association under the Commercial Act or a similar bearer agreement under the Commercial Act, and thus, the Defendant did not have the status of keeping the property of the victim.

Even if there was no embezzlement of money for the sale of cars or for the purchase of heavy cars from the victim with regard to the criminal facts listed in Nos. 2 through 6 of the crime list in the holding of the court below, and the criminal facts listed in Nos. 1, 7 and 8 did not have a strict proof to the extent that there was no reasonable doubt

Therefore, the judgment of the court below which found the Defendant guilty of the facts charged of this case is erroneous by misapprehending the legal principles.

Comprehensively taking account of all the circumstances, including the fact that the accused of unfair sentencing is against the accused and the absence of the same kind of criminal power, the lower court’s imprisonment (two years of imprisonment) is unreasonable.

Judgment

Since misunderstanding of facts and misunderstanding of legal principles as to whether the defendant was in the custody of a custodian belongs to the partnership property of the union member, if one of the union members arbitrarily consumes the proceeds acquired from the disposal of the union property, the crime of embezzlement cannot be exempted. This legal doctrine also applies to a so-called internal partnership whose partnership relationship is not revealed externally, even though it is an internal partnership relationship.

(See Supreme Court Decision 2007Do10645 Decided February 14, 2008, and Supreme Court Decision 2009Do7423 Decided October 15, 2009). However, unlike this association or internal association, in the case of an anonymous association, the money and other properties invested by the undisclosed partner for business become the property of the other party, and thus, the proprietor is not in the position of the person who keeps another’s property.