[횡령(예비적죄명:배임,사기)][집38(1)형,655;공1990.5.15.(872),1010]
The case holding that the actual manager of a company entrusted with the name of building permit is the subject of embezzlement as the custodian of a newly constructed building for which no registration of preservation of ownership was made.
A person who is in the legal position to dispose of real estate effectively to a third party shall be deemed to have control over the real estate. Thus, in the establishment of embezzlement, if the building of this case for which registration of preservation of ownership has not been made is deemed to be a person who keeps the real estate, and thus, if the building of this case is owned by the victim and was constructed by providing the principal part of the materials and efforts, and only the title of the building permission was entrusted to the Gap company, the actual manager of the Gap company shall be deemed to be the person who keeps the building of this case, a real manager of the building of this case, in light of the provisions such as Article 131 subparagraph 1 of the Registration of Real Estate Act, Article 6 of the Enforcement Rule of the Building Act, Article 131 of the Registration of Real Estate Act, Article 6 of the Enforcement Rule of the Building Act, which provides that a person who proves that the building was registered as the owner of the unregistered building by the copy of the building management ledger (or house ledger)
Article 355 of the Criminal Act, Article 131 subparagraph 1 of the Registration of Real Estate Act, Article 6 of the Enforcement Rule of the Building Act
[Plaintiff-Appellant] Plaintiff 1 and 1607 (Gong167, 1987, 1987) (Law No. 1987, 477)
Defendant 1 and one other
Defendants
Attorney Jeon Young-young (for the defendant 2)
Incheon District Court Decision 88No806 delivered on August 17, 1989
All appeals are dismissed.
1. On April 1985, the lower court found Defendant 2 to have obtained a construction permit to construct 29 households on the land under the name of the 139-dong, Seo-si Construction Co., Ltd. after purchasing the above 13 sites from 5,000, the owner of the above 10-month apartment, and found Defendant 1 to have acquired the above 10-month apartment construction permit under the name of the 19-year apartment construction company. On March 26, 1986, the lower court concluded that only some of the construction works such as the access road construction works, etc. were to be constructed and the remaining construction works were to be carried out. On the completion of the construction of the above 10-month apartment, the lower court concluded a contract to sell it in lots and pay the proceeds thereof to the owner of the above 10-month apartment, and that the said 10-month apartment construction permit was to have been issued to the owner of the above 10-month apartment construction permit under the name of the 10-month apartment construction permit.
2. Determination as to Defendant 2’s defense counsel’s grounds of appeal Nos. 2 and 3 and Defendant 1’s ground of appeal No. 2
If the evidence admitted by the court below is examined by comparison with the records, the facts of the embezzlement of this case can be sufficiently recognized by the defendants who found the defendants guilty, and the judgment of the court below cannot be deemed to have been erroneous by misapprehending the rules of evidence, by misapprehending the legal principles as to the withdrawal of declaration of intention or the intention of unlawful acquisition, or by omitting the judgment as to the assertion by the defendant 2, without proper examination of the court below. Thus, there is no reason to view all
3. Determination on each of the grounds of appeal No. 1 by the same defense counsel and Defendant 1
In order to constitute embezzlement, the subject of the act must be in the position of custody of another person's property through a consignment relation. If the subject of the act is in the position of effective disposal of the real property to a third party, it shall be deemed that the person who holds the real property has control over the real property (see, e.g., Supreme Court Decisions 196Do1607, Feb. 10, 1987; 86Do1607, Jun. 28, 1983; 83Do1212, Feb. 10, 1987).
In this case, based on the facts duly confirmed by the court below, the apartment building of this case, which was not registered for preservation of ownership, is owned by the injured party Lee Jae-hoon who actually provided the main part of the material and effort and constructed by himself, and only the name of the building permit was entrusted to the "Non-Indicted Party 1". Thus, if the building owner undergoes a completion inspection after the construction work of the building was completed, the building management ledger is prepared in accordance with the construction permit-related documents, and the person who proves himself or the deceased as the owner of the building ledger by the certified copy of the building management ledger (or house ledger) can apply for the registration of preservation of ownership of unregistered building (Article 131 subparagraph 1 of the Registration of Real Estate Act, Article 6 of the Enforcement Rule of the Building Act, etc.). In light of the related Acts and subordinate statutes (Article 131 subparagraph 1 of the Registration of Real Estate Act, Article 6 of the Enforcement Rule of the Building Act, Defendant 1, the actual manager of the apartment building of this case, who is the name of the building permit, thus, cannot be seen as the owner of the property theory of embezzlement.
4. Judgment on Defendant 1’s ground of appeal No. 3
As in this case, with respect to a judgment on which ten-month imprisonment was imposed, the decision cannot be deemed as the grounds of appeal on the grounds that the amount of punishment is unreasonable. Therefore, there is no ground for review.
5. Therefore, all appeals by the Defendants are dismissed. It is so decided as per Disposition by the assent of all participating Justices.
Justices Lee Jae-sung (Presiding Justice)