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All the judgment below is reversed.
Defendants are not guilty.
Reasons
1. Summary of grounds for appeal;
A. Defendants 1 through misunderstanding of facts or misunderstanding of legal principles) The agreement on a restaurant business between the Defendants and the victims constitutes an anonymous association agreement, and the Defendants did not have the status of keeping the business property for the victims.
B) The bank account used by the Defendants was used only for restaurant business under the agreement with the victims, and the purpose and purpose of the account is not specified. Thus, all the money deposited in the account cannot be deemed as a business property. (C) The Defendants paid money in cash, such as the cost of high term purchase, tax and public charges, part of the taxes and public charges, and daily allowances for employees.
As such, there are many cases where the Defendants paid expenses for restaurant business in cash. It is unreasonable to view that the Defendants’ withdrawal and use of cash or checks in the bank account is embezzlement. D) In light of the fact that the Defendants had the right to use KRW 4 million as the monthly business management expenses for each month, due to the lack of operational funds due to the business operator, the Defendants used personal money for the restaurant operating funds, and the total sum of the operating expenses that the Defendants could have paid and the invested personal funds during the period specified in the judgment of the court below exceeds the amount of embezzlement, the Defendants cannot be recognized as the criminal intent of embezzlement and the intent of unlawful acquisition. 2) In light of the fact that each punishment (one year of imprisonment and two years of suspended execution) sentenced by the court below to the Defendants is too unreasonable.
B. Since April 5, 2012, the content certification sent by the victims of the crime to the Defendants on April 5, 2012 was not indicated in the intent to withdraw from the partnership, and even thereafter, the relationship between the Defendants and the victims was maintained, and the purport of the content certification as of April 5, 2012 can be seen as the claim for dissolution of partnership.
(b)if any;