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(영문) 대구고등법원 2017.02.03 2016노470
특정경제범죄가중처벌등에관한법률위반(횡령)등
Text

1. The part of the lower judgment against Defendant A, B, C, and D shall be reversed.

2. Defendant A, B, C, and D shall be punished by imprisonment for two years.

Reasons

1. Summary of grounds for appeal;

A. Defendant A1) misunderstanding the facts [The Act on the Aggravated Punishment, etc. of Specific Economic Crimes (hereinafter "Special Economic Crimes Act")].

A) The Defendant did not embezzled the contributions of members in collusion with B, etc.

In other words, the Defendant omitted a “stock company” from the trade name of Q (hereinafter “ Q”) or lower.

Although it is recognized that Q received money from it, it is only the introduction or case fee that Q entered into a legitimate design service contract with the victim NN District Housing Association (hereinafter “victim Association”) in order to take exclusive charge of the business of authorization and permission of the agency (hereinafter “rental business”).

Therefore, the defendant did not have the intention to jointly process the crime of embezzlement.

B) The Defendant was not in the custody of the victim’s union members’ contributions.

2) Even if the facts charged against the defendant were found guilty, the sentence imposed by the court below (two years of imprisonment) is too unreasonable.

B. Defendant B (1) misunderstanding of the facts or misunderstanding of the legal principles [the violation of the Act of the Specific Economic Crimes (Embezzlement)] A) the old N District Housing Project (hereinafter “the instant project”) of the Gu-U.S. N District Housing Project (hereinafter “the instant project”) requires Q to take charge of the rental business with T (hereinafter “T”) which is an enterprise that entered into the initial design service contract (hereinafter “first design service contract”) because the authorization procedure is complicated and high risk is high, and Q to take charge of the initial design service contract (hereinafter “the first design service contract”). Q is faithfully carrying out the rental business so that the victim association obtained approval of the instant project plan, and it cannot be said that Q is excessive service cost.

The Defendant’s money received from Q is not an embezzlement, but an introduction fee or rebates for a legitimate contract. Therefore, the Defendant is a member’s contribution by entering into a secondary design service contract in a formal manner.

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