1. Regarding the prosecutor's grounds for appeal

A. As to the acquittal portion, custody in the crime of embezzlement under Article 355(1) of the Criminal Act refers to the possession of property by consignment relationship. As such, legal or de facto consignment relationship between the custodian of property and the owner of property (or other principal right) should exist in order to establish the crime of embezzlement.

Such consignment relationship may be established not only through a contract such as delegation of lending and borrowing of property, but also based on the principle of good faith and customs for the management of affairs. However, in light of the fact that the intrinsic nature of embezzlement is to unlawfully acquire another person’s goods entrusted based on a fiduciary relationship, it is reasonable to determine that the consignment relationship is based on trust worth protecting the crime of embezzlement (see Supreme Court Decision 2014Do6992, May 19, 2016). Whether there is consignment relationship should be determined by considering whether there is a duty to maintain the status of custody of real estate to the custodian in light of the relationship between the custodian of the property and the owner of the property, the circumstances leading up to the custody of the property, etc., and whether there is a need to protect the custodian under criminal law (see Supreme Court Decision 2017Do17494, Jul. 19, 2018).