횡령등
1. The judgment of the court below of first instance is reversed as to the judgment of the court below of first instance.
The defendant is not guilty. The judgment on this part shall be rendered.
1. The decision of the court below on the gist of the defendant's appeal (No. 1: imprisonment with prison labor for 10 months, and imprisonment for 8 months and additional collection) is too unreasonable.
2. Ex officio determination (as to the judgment of the court of first instance)
A. On August 22, 2013, the Defendant, at the office of “D real estate” located in Simsan-si, Simsan-si (hereinafter “instant real estate”), had the victim E-F registered the transfer of ownership in the name of the Defendant in accordance with the trust agreement with the victim and F, and had the victim and F embezzled the lease deposit remitted from the lessee of the said room in the future.
On September 10, 2013, the Defendant received the lease deposit amount of KRW 32,00,000 for the above room from the lessee I under the name of the Defendant (J) and deposited for the victim, and transferred the above money to the new bank account of K on the same day. From around that time to February 2014, the Defendant voluntarily consumed the above money for personal purposes, such as living expenses, attorney fees, etc. in the residential premises located in the Gwanak-gu Seoul Special Metropolitan City L from that time to February 2014.
Accordingly, the defendant embezzled the victim's property.
B. 1) The relevant legal doctrine states that custody in the crime of embezzlement refers to possession of property based on a consignment relationship. As such, in order to constitute embezzlement, there is a legally or de facto consignment relationship between the custodian of the relevant property and the owner of the property (or the owner of other principal rights).
Such consignment trust relationship is not only based on a contract such as lending of use, lease, delegation, etc., but also may be established based on the management of affairs, customs, cooking, and good faith principle. 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, the fiduciary relationship is a new trust worth protecting the victim’s goods as embezzlement.