The prosecutor's appeal is dismissed.

1. The summary of the grounds for appeal is as follows: (a) the court below found the Defendant not guilty of the amount of KRW 400 million paid to the Defendant by the victim with the purpose and purpose of use; (b) not the amount entrusted to the Defendant, but the Defendant’s ownership is not subject to embezzlement due to investment; (c) however, the Defendant established G Co., Ltd. for the new construction of this case and the victim invested KRW 400 million in the said

Therefore, even if the defendant cannot be deemed to have embezzled the money owned by the victim, he can be deemed to have embezzled the money of G corporation. Therefore, the judgment of the court below which did not examine this point is erroneous in the incomplete hearing and erroneous determination of facts.

2. In order to establish embezzlement, it should be recognized that the defendant is in a position to retain another's property.

As such, the status of the custodian of a defendant constitutes the important part of the facts charged directly related to the exercise of the defendant's right to defense, the prosecutor must specify the status of the custodian, and the court cannot recognize the status of the custodian different from the written indictment without changing the indictment.

In conclusion, the prosecutor's assertion that the court below erred in failing to examine whether the defendant is in the position of keeping the amount of money of G, which is not the victim as stated in the indictment, cannot be accepted in itself.

In order to inform the prosecutor of the same fact on the first day of the appellate trial of this case, and to maintain the grounds for appeal as they are, the court recommended the prosecutor to examine the changes in the indictment, but the prosecutor expressed his opinion that the changes in indictment will not be made during the three-time public trial

3. In conclusion, the prosecutor's appeal is dismissed in accordance with Article 364 (4) of the Criminal Procedure Act since it is without merit. It is so decided as per Disposition.