횡령
The defendant shall be innocent.
1. The summary of the facts charged of this case is as follows: (a) around April 2004, the Defendant received a request from the victim C to transfer the ownership to the 188 square meters of the Yeongdeungpo-gu Seoul Metropolitan E site (hereinafter “instant site”) that he purchased with the victim C by investing KRW 80 million, and entered into a title trust agreement upon receiving a request from the Defendant to transfer the ownership of the 188 square meters of the building site in the name of the Defendant; and (b) around June 23, 2004, the Seoul Southern District Court, Yeongdeungpo-gu, Seoul District Court, Yeongdeungpo-gu, Seoul District Court (hereinafter “Seoul District Court”) made a title trust agreement; and (c) made a sales agreement to sell the instant site to F for the sake of victims on or around August 6, 201 to sell the instant site to F around September 27, 2011, and embezzled the said building site equivalent to KRW 160 million at the market price by completing the ownership transfer registration of the instant site in the F future.
2. Judgment on the issue
A. The key issue of the instant case is whether the Defendant can recognize the status of “a person who takes custody of another’s property” under Article 355(1) of the Criminal Act.
B. According to the provisions of Article 2 subparag. 1 and Article 4 of the Act on the Registration of Real Estate under Actual Titleholder’s Name, where a truster and a trustee enter into a title trust agreement, and accordingly, the trustee entered into a title trust agreement between the owner without knowing the fact that he/she becomes a party to the agreement, and subsequently completed the registration of ownership transfer of the relevant real estate under the title trust agreement, the change in the real right to the relevant real estate through the registration of ownership transfer is valid, and on the other hand, the title trust agreement between the truster and the trustee is null and void. Thus, the trustee shall be deemed to have acquired the ownership of the relevant real estate effectively not only the seller, but also the truster’s relationship with the truster.