(영문) 인천지방법원 2016.05.25 2016노572 | 리걸엔진

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(영문) 인천지방법원 2016.05.25 2016노572

횡령

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All appeals by the defendant and the prosecutor are dismissed.

Reasons

1. Summary of grounds for appeal;

A. Defendant was not in the position of custodian, and the amount owned by Defendant did not constitute occupational embezzlement.

Nevertheless, the lower court found the Defendant guilty on the part of the facts charged of the instant case (the sales proceeds settled in cash, KRW 2,546,716 around June 23, 2013, KRW 2,477,097, KRW 5,023,813, around June 30, 2013). In so doing, the lower court erred by misapprehending the facts and adversely affecting the conclusion of the judgment.

B. According to the evidence duly adopted and investigated by the lower court, the lower court found the Defendant’s occupational embezzlement of the amount of money (3,398,150 won around June 16, 2013, sales proceeds settled by credit cards and cash payments, sales proceeds settled by credit cards, KRW 9,225,095 won around June 23, 2013, and KRW 21,537,037 in total), which was paid by credit cards, on June 30, 2013.

Nevertheless, the judgment of the court below that there is no proof of a crime as to the above part of the charged facts is erroneous and adversely affected by the judgment.

2) The sentence of the lower court that is unfair in sentencing (five million won in penalty) is too unfluent and unfair.

2. Determination

A. We also examine the grounds of appeal by the Defendant and the Prosecutor regarding the assertion of mistake of facts between the Defendant and the Prosecutor.

1) According to the evidence duly adopted and examined by the lower court, the lower court determined the following facts: (a) the victim leased and operated the Mat Cop in this case; (b) caused customers to pay the price through the calculation unit established by the lessor; and (c) the Defendant received the price for the goods sold from the Matner and the goods sold from another cop in the Mat from the customers in a lump sum; and (d) calculated and paid the remainder of the amount obtained by deducting the card fee, event expense, and the amount of payment for the membership points from the price for the goods sold from the Matco on every day or every gold day.

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