특정경제범죄가중처벌등에관한법률위반(횡령)
The defendant is innocent. The summary of this judgment shall be notified publicly.
1. The summary of the facts charged of the instant case is as follows: (a) the Defendant embezzled the instant land to H by completing the registration of ownership transfer of the instant land in the name of H around June 16, 2010 on August 13, 2010, when he/she had sold the instant land to H around KRW 923 million in the purchase price, and completed the registration of ownership transfer in the name of H around August 13, 2010 on the instant land in the name of H around August 13, 2010, when he/she jointly owned five persons, such as the Defendant and the victim E (hereinafter “instant land”).
2. Determination
A. The subject of embezzlement under Article 355(1) of the Criminal Act refers to a person who keeps another’s property. Here, the term “storage” refers to the possession of property under a consignment relationship, and therefore, in order to constitute embezzlement, there is a legally or de facto fiduciary relationship between the custodian of property and the owner of property (or the owner of property or other person of title). Such fiduciary relationship is not only based on a contract such as a lease of use and a lease, but also can be established based on the customary principle of good faith, etc. However, in light of the intrinsic nature of embezzlement, the fiduciary relationship is reasonable to determine that the fiduciary relationship is based on trust that is worth protecting the crime of embezzlement and that it illegally obtains another person’s property entrusted based on a fiduciary relationship.
The legislative intent of the Act on the Registration of Real Estate under Actual Titleholder’s Name (hereinafter “Real Estate Real Name Act”) is to prevent any acts against the law of tax evasion, such as evasion of speculation, which abuse the real estate registration system, and to contribute to the sound development of the national economy by promoting normalization of real estate transactions and stabilization of real estate prices, by having any ownership and other real rights to real estate registered in the name of the actual right holder so as to coincide with the substantive legal relationship.