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(영문) 부산고등법원 2018.06.28 2018노91
특정경제범죄가중처벌등에관한법률위반(횡령)
Text

The judgment of the court below is reversed.

A defendant shall be punished by imprisonment for not less than one year and six months.

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

Reasons

1. Summary of grounds for appeal;

A. The court below erred by misunderstanding the facts or by misapprehending the legal principles as follows.

① The Defendant, on April 23, 2014, lent KRW 120 million to O Co., Ltd. (hereinafter “O”) on April 23, 2014 (hereinafter “O”), and immediately received reimbursement from O, with regard to the fact that there was an intention of unlawful acquisition by the Defendant.

shall not be deemed to exist.

② Loans of KRW 1.1 million to AU (No. 44), loans of KRW 3 million to AA (No. 16 in attached Form No. 16 in the judgment below), and loans of KRW 2 million to AF (no. 26 in attached Table No. 26 in the judgment below), are loans of KRW 1.1 million to AU, and each of the above acts does not constitute embezzlement, inasmuch as such loans can be conducted without a resolution of the board of directors within the scope of the defendant’s authority as representative director.

B. The sentence sentenced by the lower court to the Defendant (one year and six months of imprisonment) is too unreasonable.

2. Judgment on the Defendant’s misunderstanding of facts or misapprehension of legal principles

A. In light of the evidence duly admitted and examined, the lower court determined that, insofar as the Defendant voluntarily lent KRW 120 million to O for private purposes without following lawful procedures such as a resolution of the board of directors by taking advantage of the status of the representative director, the Defendant had the intent to obtain unlawful acquisition of the Defendant, as long as he/she had determined only the repayment period and voluntarily lent KRW 120 million toO for the purpose of private use without going through lawful procedures, such as the resolution of the board of directors.

The judgment of the court below is just, and there is no error by mistake of facts or by misunderstanding of legal principles as alleged by the defendant, and this part of the defendant's assertion is without merit

B. The following circumstances acknowledged by the evidence duly adopted and examined by the lower court that embezzlements by means of the lending of small amounts to AU, AA, and AF: (1)

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