[횡 령 ][하집1998-2, 673]
In a case where a title trustee arbitrarily disposes of an entrusted real estate after the grace period under Article 11(1) of the Act on the Registration of Real Estate under Actual Titleholder’s Name has expired without a dispute over a real right to real estate (negative)
If a title trust agreement and any registration completed pursuant to the title trust agreement are invalid after the grace period has expired, unless a title truster is registered in the name of the person having the actual right or dispute over the real right to real estate held in title to another person within the grace period under Article 11 (1) of the Registration of Real Estate under Actual Titleholder's Name before the enforcement of the Act on the Registration of Real Estate under Actual Titleholder's Name, the title truster cannot be deemed the owner of the real estate, and even if the title trustee disposes of the real estate voluntarily, it cannot be held embezzlement in relation to the title truster even if
Articles 355(1) of the Criminal Act, Articles 4, 11, and 12 of the Act on the Registration of Real Estate under Actual Titleholder’s Name
Defendant
Attorney Yellow-gu
The defendant is innocent.
1. Summary of the facts charged
The summary of the facts charged in this case against the defendant is as follows: "the defendant purchased 180,000,000 won of 65,455,000 won out of 19,55,000 won out of 19,000 won of f5,00 won of f5,000 won of f5,00 won of f3,000 won of f,00 won of f,00 won of f,00 won of f,00 won of f,00 won of f,00 won of f,00,000 won of f,00 won of f,00 won of f,00 won of f,00,000 won of f,00 won of f,00 won of f,00 won of f,00 won of f,00 won of f,00 won of f,00 won of f,00 won of f,00 won of f,
2. Judgment of party members
A. The Act on the Registration of Real Estate under Actual Titleholder's Name (Act No. 494 of March 30, 1995) provides that the effect of title trust with respect to real estate shall be null and void, Article 4 (1) of the same Act provides that "any change in the real right to real estate by the registration made under a title trust agreement shall be null and void," and Article 4 (2) of the same Act provides that "any change in the real right to real estate by the registration made under a title trust agreement shall be made null and void," while Article 11 (1) provides that "the title truster, who has made any person register or had any real right to real estate under a title trust agreement before this Act enters into force, under the name of the title trustee within one year from the enforcement date of this Act" and Article 11 (4) provides that "where litigation has been instituted before this Act enters into force or during the grace period, the real name registration or sale thereof shall be made within one year after the final and conclusive judgment on the dispute is made, and Article 19 (1) of the same Act."
B. In accordance with the above provision of the above Act, if the real estate which was trusted to another person before the enforcement of the above Act is registered under the name of the actual right holder or does not bring an action as to the real right to the real estate within the grace period of one year from July 1, 1995 to the enforcement date of the above Act, the title trust agreement and the registration completed according thereto shall be null and void after the lapse of the grace period. According to the records, the above victim can be recognized as not having registered his own shares under the name or not filing a lawsuit as to the real right to the real estate (hereinafter referred to as the "real-name registration, etc.") within the grace period of one year from the enforcement date of the above Act. Thus, the above title trust agreement concluded between the defendant and the above victim became null and void
C. However, in light of the legal principles of embezzlement, if the Defendant’s act of establishing a right to collateral security falls under embezzlement in relation to the said victim, the said victim should be deemed the owner of the instant forest. However, the said victim’s act of establishing a right to collateral security can be deemed to be the owner of the instant forest. However, the two-thirds shares constituting the investment ratio of the Defendant among the instant forest are owned by the Defendant, and the remaining three-thirds shares constituting the investment ratio of the said victim are also owned by the Defendant, so long as a title trust agreement becomes null and void due to the above victim’s failure to do so within the grace period, the said victim cannot be deemed the owner of the instant forest after the lapse of the grace period, and there is no evidence to recognize that the Defendant was the owner of the instant forest at the time of the establishment of the said right to collateral security, and thus, the Defendant’s act of establishing a right to collateral security cannot be deemed the crime of embezzlement in relation to the said victim (On the other hand, even if examining the validity in terms of the foregoing provision, the title truster’s still can still dispose of the trust property.
3. Conclusion
Therefore, since the facts charged in this case constitute a time when there is no proof of crime, the defendant is acquitted pursuant to the latter part of Article 325 of the Criminal Procedure Act
It is so decided as per Disposition for the above reasons.
Judges Song Gyeong-dae