(b) Where the title holder of registration of invalidation of the cause of real estate has received the compensation paid to the landowner, the relationship of keeping the compensation.

C. The case where voluntary consumption of the expropriation compensation paid for the land held in title trust and embezzlement

B. Even if a person, who is not in the custody of another person's land, obtains the compensation to be paid to the landowner by being incorporated into a waterway by farmland improvement project, using the fact that the ownership transfer registration for invalidation of the cause has been completed in the future, the acquisition of possession of the compensation shall be deemed to have been caused by deception against the farmland improvement project operator, but it shall not be deemed to have been caused by deception against the farmland improvement project operator, and there is no room to deem that there is no storage relation with the compensation.

C. A person, who has completed the registration of ownership transfer through a title trust for a part of the land’s share, has the authority to dispose of the land effectively to a third party within the extent of his/her share, and is in the position of the custodian, who is the subject of embezzlement. Therefore, receiving the compensation for expropriation for the share held in the above title trust is received in the position of the custodian of the above land, and thus, the act of arbitrary consumption without return to the title truster

1. According to the reasoning of the judgment below, the court below held that among the charges of this case, the defendant's original red growth species owned by the defendant, which was registered under the name of the non-indicted deceased and four persons except for the deceased, the defendant's possession of the above nine lots of land, such as 171 forest land in Yusan-ri, 25,689 square meters, etc., from the above sentence and possessed by the defendant under delegation of farming management from the above sentence, he arbitrarily completed the registration of ownership transfer from the defendant under the Act on Special Measures for the Registration of Real Estate Ownership Transfer, and then he could not be found guilty of the above nine lots of land in Yusan-ri, Seosan-ri, Seosan-ri, 171, which was transferred to 451 square meters in horizontal area from the above nine pieces of land to 451 square meters in horizontal area, and thus, the defendant cannot be deemed to have received compensation from the above part of the above nine pieces of land in 1982 to 184 meters in his own forest land.

2. In order for embezzlement to be established, the custodian's status should first be the person in custody of another's property, and the status of the custodian of the real property shall not be based on the possession of the real property, unlike in the case of movable property, but shall be based on the existence of the ability to dispose of the real property effectively to a third party. Thus, a person who has been delegated the cultivation management of another's land without obtaining the registration of ownership transfer shall not be deemed to be the custodian's status as to the standing trees or fruits, etc., which become independent movable by being separated from the land, can not be deemed to be the custodian's status as to the land itself, unless he/she has obtained a false certificate of guarantee and a written confirmation, and even if he/she has made the registration of ownership transfer under the Act on Special Measures for the Registration of Ownership, etc. of Real Estate with the false certificate and a written confirmation, the disposal authority of the land is not new by the registration of invalidation of such cause.

In addition, even if a person who is not in the custody of another person's land obtains compensation to be paid to the landowner by being incorporated into a waterway by farmland improvement project, using that land has been completed the ownership transfer registration for invalidation of cause in the future, the acquisition of possession of the compensation shall be deemed to have been caused by deception against the farmland improvement project operator, and it shall not be deemed to have been caused by deception against the farmland improvement project operator, and therefore there is no room to deem that there is any custody relationship with respect to the compensation.

Therefore, in the instant case, it shall be deemed that there is no room for embezzlement against the part of the sum of the expropriation compensation of KRW 194,040 due to the Defendant’s incorporation of a part of the instant land into a waterway, which corresponds to the remaining four equity ratios except for the deceased of the instant land. It shall be the judgment of the court below that the crime of embezzlement is established.

3. However, as to the part corresponding to the portion of the non-indicted deceased's share in the land of this case among the above compensation, it is clear in the judgment of the court of first instance cited by the court below that the non-indicted deceased's share in five percent of the land of this case was transferred to the non-indicted deceased, and the defendant's share in the co-property of the non-indicted deceased's co-property of this case constitutes embezzlement, on the other hand, the defendant has the ability to dispose of a part of the land effectively to a third party within the extent of his share in the title trust, and the person who is subject to the registration of ownership transfer through the title trust has the right to dispose of the land to a third party, which is the subject of embezzlement. Thus, within the limit of his share in the ownership, the defendant succeeded to the status of the custodian as to the portion originally trusted to the above non-indicted deceased's share in the property of this case, and therefore, even if the defendant received it, the defendant's voluntary consumption of the land of this case without returning it in the above sentence constitutes embezzlement.

4. Therefore, the non-guilty portion of the judgment of the court below is reversed, and the corresponding part is remanded to the Gwangju High Court. It is so decided as per Disposition by the assent of all participating judges.

Justices Lee Jae-hee (Presiding Justice)