횡령
The prosecutor's appeal is dismissed.
1. According to the evidence submitted by the prosecutor, the court below found the Defendants not guilty on the grounds that it is reasonable to deem that the Defendants conspired to embezzlement the victim’s property and the intent of unlawful acquisition was also recognized.
2. Determination
A. The subject of embezzlement under Article 355(1) of the Criminal Act ought to be the person who keeps another’s property. Whether it is another’s property should be determined by the Civil Act, the Commercial Act, and other substantive laws.
Since custody in embezzlement means the possession of property through a consignment relationship, in order to establish embezzlement, there is a legal or de facto consignment relationship between the custodian of the property and the owner of the property (or the other principal owner).
However, in light of the fact that the intrinsic nature of embezzlement is to illegally acquire another person's goods entrusted based on a fiduciary relationship, it is reasonable to determine that the fiduciary relationship is based on trust worth protecting the crime of embezzlement.
Where a title truster who purchased real estate has completed the registration of ownership transfer under the name of the title trustee immediately from the seller pursuant to a title trust agreement entered into with the title trustee without completing the registration of ownership transfer under his/her own name, the registration of ownership transfer under the name of the title trustee pursuant to the main sentence of Article 4 (2) of the Act on the Registration of Real Estate under Actual Titleholder’s Name (hereinafter “Real Estate Real Name Act”)
The title truster only has the right to claim ownership transfer against the seller, but also does not have the ownership of the trusted real estate, and the title trustee also has the right to the title truster.