The defendant's appeal is dismissed.

Summary of Grounds for Appeal

Although the defendant was called to receive money from the victim of misunderstanding of facts at any time, the victim was not found.

The sentence of the lower court on unreasonable sentencing (fine 5 million won) is too unreasonable.

Judgment

"Refusal to return" in misunderstanding of facts refers to an act of expression of intent to exclude the owner's right against the stored goods. Thus, the crime of embezzlement is not established merely because the person who keeps another's property refuses to return it, and the act of refusal to return should be deemed to be the same as the act of embezzlement by taking account of the reasons for refusal to return and subjective intent, etc.

(See Supreme Court Decision 2003Do7487 Decided February 10, 2006, and Supreme Court Decision 201Do7637 Decided August 23, 2013, etc.). Comprehensively taking account of the following circumstances acknowledged by the evidence duly adopted and examined by the lower court, the Defendant refused the Defendant’s demand for return of the money that the Defendant left by the victim. Such refusal of return may be recognized to the same extent as the embezzlement act in light of the Defendant’s attitude toward the victim, refusal period, and refusal of return.

① Around April 2016, the victim continuously requested the borrower to return the money to the lender as he/she is required to return the money.

② While the Defendant was willing to go to go to his seat, the Defendant did not return money to the Defendant with the intention of evading the victim actually, or talking that the victim was a fraudulent person, and the victim did not appear to have been wrong.

③ Even after the Defendant did not return money to the victim, the Defendant only filed a complaint with the Defendant on March 16, 2017.

4. 28. Return

Therefore, this part of the defendant's argument is without merit.

The trial-oriented principle and direct principle of unreasonable sentencing.