[2] The case holding that the court's failure to punish the charge of embezzlement ex officio without any changes in the indictment is not illegal when it acquitted the charge of embezzlement

1. Regarding ground of appeal No. 1

If an agreement was made to redeem the principal and interest of a debt within a certain period while transferring other property rights by way of arranging existing debts, barring any other special circumstances, it shall be interpreted that an agreement was made between the parties to transfer the property for the purpose of collateral and to pay the principal and interest through the process of settlement through the exercise of security rights if the repayment is not made within the due date (see Supreme Court Decision 97Da4005 delivered on April 10, 1998).

According to the facts established by the court below, unlike the agreement between the non-indicted 2 and the non-indicted 1 on January 2003 that the non-indicted 1 grants the title transfer without any condition upon the request of the non-indicted 2, the agreement of this case includes that the non-indicted 2 grants the title transfer when he pays his obligation to the defendant, and that the defendant and the non-indicted 2 actually existed the obligation under the agreement of this case at the time of the agreement of this case, and if the non-indicted 2 did not pay his obligation to the defendant before the agreement of this case, it can be deemed that the non-indicted 2 transferred the ownership of each ship of this case to the defendant for the purpose of securing the defendant's obligation to the non-indicted 2, in light of the fact that the non-indicted 2 agreed that the ownership of each ship of this case was transferred to the defendant for the purpose of securing the defendant's obligation to the non-indicted 2. Thus, each evidence submitted by the court below was justified in light of the above legal principles and records, and there is no error in the misapprehension of legal principles as to the status of embezzlement.

2. Regarding ground of appeal No. 2

If a court recognizes a criminal fact that is not heavier than that of the criminal facts charged within the scope that is identical to the facts charged, and recognizes that there is no risk of causing a substantial disadvantage to the defendant's exercise of his/her right to defense, it may recognize the criminal facts different from the facts charged ex officio without a modification of an indictment, but it may not be erroneous for the court to recognize the criminal facts ex officio unless it is found that the failure to punish the criminal facts for the reason that the indictment was not modified is obviously contrary to justice and equity (see, e.g., Supreme Court Decisions 96Do234, Feb. 14, 1997; 200Do258, Sept. 8, 2000).

In this case, the prosecutor stated the facts charged of the crime of embezzlement in the indictment in preliminary or selective form, or did not add or alter it in the course of the lawsuit, and in this case, it cannot be deemed that the court's failure to punish the defendant as the crime of breach of trust ex officio without any changes in the indictment is obviously contrary to justice and equity. Thus, the court is just in holding that the court below acquitted the defendant on the charge of embezzlement without any changes in the indictment, and the conclusion of finding the defendant guilty on the charge of the crime of breach of trust ex officio in this case where it is unclear whether the crime of breach of trust is established or not, and the court did not admit the defendant guilty on the charge of the crime of breach

3. Therefore, the appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Hwang-sik (Presiding Justice)