The judgment of the court below is reversed.

A defendant shall be punished by imprisonment for two years.

However, for three years from the date this judgment becomes final and conclusive.

1. Summary of grounds for appeal;

A. The Defendant, by misunderstanding of facts or misunderstanding of legal principles, borrowed KRW 2.5 billion from H and I to acquire all the shares and management rights of D Co., Ltd. (hereinafter “D”), and the Defendant, after taking account of D’s management rights, entered into a sales contract for 49% of the shares of D and K with D (hereinafter “J”) and remitted KRW 2.7 billion of the funds to K as shares payment, and the Defendant borrowed KRW 2.7 billion from K to repay some of the funds to H and I, the lower court found the Defendant guilty of embezzlement of KRW 2.7 billion of the funds of D due to misunderstanding of facts or misunderstanding of legal principles.

B. The sentence imposed by the court below on the defendant (two years of imprisonment) is too unreasonable.

2. Determination

A. 1) Determination of mistake or misapprehension of legal principles is not necessarily consistent with the understanding of a shareholder as an independent right holder separate from a shareholder. Thus, if a shareholder, representative director, or a person in charge of de facto affairs concerning the custody or operation of company’s funds disposes of the company’s property for private purposes, such as offering it as collateral for a third party’s financing, etc., then the crime of embezzlement may not be exempted regardless of whether the general meeting of shareholders or the board of directors has adopted a resolution regarding such disposition (see, e.g., Supreme Court Decision 2010Do17396, Mar. 24, 2011). Meanwhile, in the crime of occupational embezzlement, the intent of unlawful acquisition refers to an intention to dispose of another person’s property in violation of his/her duties for the purpose of seeking the benefit of himself/herself or a third party, and if the defendant denies such intent, it refers to an indirect fact or an indirect fact that has considerable relevance with the intent of the resolution