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The defendant's appeal is dismissed.
Reasons
1. Summary of grounds for appeal;
A. misunderstanding of facts: (a) KRW 100 million is not money attributed to investors in D (hereinafter “victims”) with money to be returned to the assignee due to nonperformance of the contract on May 26, 2015; and (b) as such, the consignment relationship between the Defendant and the victims is terminated, it cannot be the subject of embezzlement.
② KRW 100 million received around July 201, to K, which was refused to reach an agreement at the time, is not by nature attributable to the victims, but rather by an additional contract related to the assignment of claims, and cannot be the object of embezzlement for the said reasons.
③ 200 million won was terminated between the victims and the F, and the Defendant was asked F to use KRW 200 million as a marriage expense. Therefore, the Defendant cannot be said to have the intent of embezzlement.
④ If KRW 200 million is the amount of debt owed to the victims, the amount shall be equally apportioned to the victims according to the ratio of the amount of the claim. Since the Defendant is one of the victims, the crime of embezzlement cannot be established at least for the amount to be apportioned to the Defendant.
B. The sentence of unfair sentencing (one year and two months of imprisonment, two years of suspended execution, and 80 hours of community service) of the lower court is too heavy.
2. Determination
A. (1) Comprehensively taking account of the evidence duly admitted and examined by the first instance court as to the assertion, the Defendant represented the victims from the end of 2005 to July 201, and the Defendant: (a) on May 26, 2011, entered into an agreement with the victims on behalf of the victims to transfer the claim amounting to KRW 1.5 billion to KRW 1.5 billion from the O’s representative director F on behalf of the victims; and (b) entered into a cash custody certificate with KRW 100 million as the down payment, and the cash custody certificate is the bond transfer and takeover contract amount.