[횡령ㆍ절도][공1982.5.15.(680),452]
Whether the assistant in possession who actually controls the property is the subject of custody under the Criminal Act (affirmative)
Even as an occupation assistant under the Civil Code exercises de facto control over the article, it can be seen as the subject of custody under the Criminal Code, so if it is obtained, it constitutes embezzlement rather than larceny.
Articles 355(1) and 329 of the Criminal Act
Supreme Court Decision 68Do1222 Decided October 29, 1968, Supreme Court Decision 73Do649 Decided May 12, 1970
Defendant
Seoul Criminal Court Decision 81No6026 delivered on November 26, 1981
The judgment of the court below is reversed, and the case is remanded to the Panel Division of the Seoul Criminal Court.
We examine the Defendant’s grounds of appeal.
Even if an assistant in possession under the Civil Code exercises de facto control over the article, it can be seen as the subject of custody under the Criminal Code (see Supreme Court Decision 70Do649 delivered on May 12, 1970).
The court below recognized the fact that the defendant stolen only one 200,000 Won which was located in the treasury of the cret store in the absence of the above victim while the defendant worked as an employee at the victim's labor-friendly store, and recognized the fact that the above victim was stolen, the defendant is punished by larceny.
However, in light of the report on the damage of the above victim's preparation bound in the record and the protocol of examination of the defendant of the prosecutor, the above victim ordered the defendant to leave the key to the credit cooperative and the key to the credit cooperative, and pay the money in the credit cooperative to be delivered to the defendant, and the defendant sent out the prison. However, it is recognized that the defendant, alone, has kept the store, and got out of the prison, by taking cash inside the credit cooperative.
In light of the above facts, the defendant is merely the person who assists in the possession of the above victim, who is the principal owner of the store, but at the time of the above crime, he can be seen to have kept cash and urbane in the safe under de facto control at the time of the above crime. Thus, the above crime of the defendant is a acquisition of another person's property under his custody and thus constitutes embezzlement.
Nevertheless, the court below erred by misapprehending the legal principles as to the elements of larceny and embezzlement, thereby excluding the judgment of the above-mentioned evidence, and by misapprehending the legal principles as to the elements of larceny and embezzlement. In this regard, there is a reason to discuss the case. Therefore, the judgment of the court below is reversed and the case is remanded to the Panel Division of the Seoul Criminal Court. It is so decided as per Disposition by the assent of all participating Justices on the bench.
Justices Lee Lee Sung-soo (Presiding Justice)