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The defendant's appeal is dismissed.
Reasons
1. Summary of grounds for appeal;
A. There was no intention to commit the crime of embezzlement against the defendant.
B. In light of the various sentencing conditions in the instant case of unfair sentencing, the lower court’s sentence (one million won of fine) against the Defendant is too unreasonable.
2. Determination
A. The act of using funds for purposes other than for a limited purpose is itself the act of using funds, and thus constitutes embezzlement, if the other party’s use or purpose of judgment of mistake of facts is entrusted with a limited amount of funds, and the intent of unlawful acquisition is realized.
(see, e.g., Supreme Court Decision 2012Do535, May 24, 2012). Moreover, in the crime of embezzlement, an intent to acquire unlawful property refers to an intention to dispose of another person’s property in violation of his/her duty to seek his/her own interest or a third party, as if the property is owned by himself/herself, and has an intention to return, reimburse, and preserve it later.
Even if the intent of illegal acquisition is recognized, there is no obstacle to recognizing the intention of illegal acquisition, and as such, it is not necessary to deduct the amount of compensation or preservation after the fact from the amount of embezzlement.
(1) The Defendant transferred KRW 45,361,00 from September 7, 2009 to the Defendant’s new financial investment account to use 43,00,000 to the Defendant’s new financial investment account for the purpose of the Defendant’s securities investment, ② the Defendant used the funds transferred to the new financial investment account in combination with the funds in the said account, and used part of the funds for purchase as a personal account; ③ the Defendant deposited KRW 40,00,000 from the date of the said transfer to November 9, 2009 to the Agricultural Cooperative under the name of the Defendant, whichever is later than two months after the date of the transfer; and ③ the Defendant deposited KRW 40,00,000 in the said account in the name of the Defendant.