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The judgment of the court below is reversed.
A defendant shall be punished by imprisonment for six months.
Reasons
1. Summary of grounds for appeal;
A. Fact-finding 1) As to the crime of occupational breach of trust of this case, the Defendant: (a) withdrawn the amount of KRW 100,000,000 out of the investment amount of KRW 400,000,000 received from the victim D; (b) however, the above KRW 100,000,000 under an investment contract with the victim D (hereinafter “F”).
(2) As to the crime of occupational embezzlement in this case, the Defendant borrowed KRW 97,00,000 from the victim F for the purpose of provisional payment and made repayment of KRW 50,00,000 from the wife H and the mother Y to the Japanese company for several times without depositing the amount into the victim F. The Defendant made reimbursement for the purpose of the latter part of the amount of money equivalent to the above loan, such as the Defendant’s purchase cost of office fixtures and expenses, the employee’s monthly salary, operating expenses, the expenses for concluding exclusive sales contracts, and the down payment. 2) As to the crime of occupational embezzlement in this case, the Defendant borrowed KRW 97,00,000 from the victim F. The Defendant did not have any intention to commit the crime of occupational embezzlement.
B. The lower court’s sentence of unreasonable sentencing (ten months of imprisonment) is too unreasonable.
2. We examine the assertion of mistake of facts regarding the crime of occupational breach of trust in the instant case; however, if the representative director of a corporation withdraws and uses the company’s money, and fails to present evidentiary materials as to the place of use; and there is no reasonable explanation as to the reason for withdrawal and the place of use, it may be inferred that he/she withdraws the company’s money with the intent of unlawful acquisition and uses it for personal purposes (see, e.g., Supreme Court Decisions 2007Do9250, Mar. 27, 2008; 2013Do2510, Jun. 27, 2013); and if there is no reasonable explanation as to the reason for withdrawal and the place of use, he/she may in turn withdraw the company’s money with the intent of unlawful acquisition