[횡령][미간행]
In the case of a contract title trust, where the trustee cancels the sales contract by agreement with the owner before the registration of the trust real estate was transferred, and received the refund of the purchase price, whether the trustee constitutes “a person who keeps another’s property” with respect to the purchase price (negative)
Article 355(2) of the Criminal Act, Article 4(1) of the Act on the Registration of Real Estate under Actual Titleholder’s Name
Supreme Court Decision 2001Do2722 Decided September 25, 2001, Supreme Court Decision 2001Do2785 Decided April 12, 2002, Supreme Court Decision 2003Do694 Decided April 27, 2004
Defendant
Prosecutor
Suwon District Court Decision 2006No2212 Decided January 10, 2007
The appeal is dismissed.
The grounds of appeal are examined.
In the so-called contract title trust, where a truster and a trustee entered into a title trust agreement and entered into a contract between a truster and a person who was unaware of the fact that a title trust agreement was concluded, the trustee fully acquired the ownership of the real estate in relation to the truster, and only bears the truster only the obligation to return unjust enrichment due to the invalidation of the title trust agreement to the truster. Such obligation to return unjust enrichment is limited to the ordinary obligation to the truster due to the invalidation of the title trust agreement, and as long as the title trust agreement between the truster and the trustee becomes null and void, barring any special circumstance, the delegation agreement for the purchase of real estate, accompanied by the title trust agreement between the truster and the trustee, shall also be deemed null and void (see, e.g., Supreme Court Decisions 2001Do2722, Sept. 25, 2001; 2003Do6994, Apr. 27, 2
In addition, such a legal principle of contract title trust shall be deemed equally applicable even if the trustee had cancelled the sales contract under an agreement with the owner before the trustee was transferred the registration of the trust real estate and received the refund of the purchase price. Therefore, it cannot be deemed that the trustee is in the position of “a person who keeps another’s property” in the crime of embezzlement.
In full view of the facts stated in its reasoning, the court below acquitted the defendant on the facts of this case on the ground that the defendant entered into the so-called "contract title trust agreement" with the victim and purchased the forest of this case from the bona fide seller, and the defendant merely bears the duty to return unjust enrichment equivalent to the purchase price that he received from the victim, and the defendant cannot be deemed to be in the status of preserving and managing the money for the victim on the ground that the contract was rescinded and the purchase price was returned. In light of the relevant legal principles and records, the above measures of the court below are just, and there is no error of law by misapprehending the legal principles on embezzlement or contract title trust, as otherwise
Therefore, the appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.
Justices Kim Young-ran (Presiding Justice)