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The defendant shall be innocent.
Reasons
1. On October 2008, the summary of the facts charged is that at the Defendant’s house located in Naju-si, on the part of Naju-si, the Defendant: (a) decided to commence an auction as of June 2, 2008 by the victim D; (b) upon the request of the victim D to the effect that “the site and buildings owned by E, which are the head, would be awarded a successful bid in the name of the land and buildings; and (c) transferred KRW 5,90,000,000 to the account under the Defendant’s name for the successful bid price, for the total amount of KRW 4.7 million on October 20, 2008, and KRW 5.9 million on November 24, 2008.
When the Defendant kept the above money for the victim, the Defendant spent 4,62,30 won on November 3, 2008 as bid bond, 4,662,30 won on February 6, 2009, KRW 4,662,300 on May 6, 2009, KRW 4,662,300 on July 4, 2009, and KRW 15 million on September 30, 2009, respectively, and returned KRW 15 million to the victim on September 30, 2009. However, on the wind awarded in the name of a third party on March 3, 2010, the Defendant spent the remaining money for personal purposes, such as repayment, while keeping it in the name of the victim, and at that time, repayment was made.
Accordingly, the defendant embezzled the victim's property.
2. Determination
A. The money entrusted with the purpose and purpose is reserved to the truster until it is used for a specified purpose and purpose. In particular, in a case where the specific nature of the money is not required, even if it is temporarily used in a situation where the trustee can substitute it for another money at the necessary time without going against the purpose of the entrustment, the crime of embezzlement is not established. Furthermore, the embezzlement constitutes embezzlement only when the trustee consumes it for another purpose in violation of the purpose of the entrustment (see Supreme Court Decision 2002Do2939, Oct. 11, 2002, etc.). In addition, the embezzlement is a dangerous crime where the principal right, such as ownership of another person’s property, is protected as legal interest, and where there is a risk of infringement of legal interests, the outcome of infringement is established.
On the other hand, there is a risk of infringement of legal interests due to a specific disposal act (hereinafter referred to as "prior disposal act").