횡령
The prosecutor's appeal is dismissed.
1. The summary of the grounds for appeal is that the Defendant created a false collateral on the instant real estate upon the victim’s request. Thus, it is reasonable in light of the empirical rule to regard that the Defendant and the victim have agreed to set up a false collateral on the instant real estate in the name of the Defendant and the victim to have cancelled the registration of establishment of a collateral on the basis of the following, or to have agreed to return the dividends when the auction procedure was in progress on the instant real estate. Therefore, the judgment of the court below which held otherwise is erroneous in the misapprehension of legal principles
2. Determination
A. A. Around February 2002, the Defendant completed the registration of the creation of a right to collateral security with the content of KRW 80 million against the mortgagee, the maximum debt amount, and KRW 1/2 of the same month upon the victim C’s request from the victim C that “The other creditors are likely to enforce compulsory execution. As to the portion of KRW 39,669 square meters of forests and fields D in Daegu-gu, Daegu-gu, the Defendant becomes the creditor, and the Defendant created the right to collateral security with respect to the said portion of KRW 1/2 of the forest.”
On April 25, 2011, the Defendant received 26,928,963 won dividends from the Defendant, a mortgagee of the said forest, from the employees of the said new bank, who had been deposited in the Daegu District Court due to the compulsory auction procedure at the Daegu District Court of Daegu District, Daegu District Court on the said forest, which held the said employees of the said new bank, who had been in custody of KRW 28,545,460, and then embezzled the said dividends and interest thereon by consuming the said dividends and living expenses, etc. around that time.
B. As long as the Defendant received dividends of this case as a mortgagee of a right to collateral security or a depositor, the lower court’s judgment held that the Defendant is the owner of the instant dividends, and the Defendant may be liable to return unjust enrichment against the victim.
(b)if any;