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The judgment of the court below is reversed.
A defendant shall be punished by imprisonment for not less than two months.
Reasons
1. Comprehensively taking account of the evidence submitted by the prosecutor to the gist of the grounds for appeal, the court below acquitted the defendant on the charge of this case, and rejected the prosecutor's application for modification of indictment and rendered a judgment without accepting the application for modification of indictment, even though the crime of aiding and abetting fraud is established if the charge of this case is not charged with embezzlement. Thus, the court below erred in the misapprehension of facts and the failure of deliberation.
2. The Defendant’s summary of the facts charged in the instant case is that C, around November 15, 2016, issued a passbook with “the head office of the National Bank,” and when raising the limit, C, with a loan immediately granted from other financial rights, may issue a passbook with a higher credit rating limit.
“If a person receives a loan and then transfers it to a designated account, he/she would immediately repay it.” On November 21, 2016, he/she received a telephone, and then embezzled that KRW 19 million, which was remitted to a Saemaul Treasury account in the name of the Defendant, to a Saemaul Treasury account in the name of the Defendant, with the knowledge that it was a gold source deposited through Bosing, and on the same day, he/she transferred KRW 5 million out of that day to a new bank account in the name of the Defendant, and embezzled it.
3. The lower court found the Defendant not guilty of the instant facts charged on the ground that C’s act does not constitute a person who keeps custody of KRW 19 million, on the ground that, in the instant facts charged, there is no room to deem that a fiduciary relationship between C and the Defendant exists, even if based on any of the grounds in the instant facts charged, the Defendant did not constitute a person who keeps custody of KRW 19 million.
4. The custody of the property in the crime of embezzlement refers to the status of de facto or legal control over the property, so the custody is entrusted.