[업무상횡령(변경된죄명:업무상횡령·배임·횡령)][집31(3)형,126;공1983.8.15.(710),1146]
(a) Where one person disposes of a State-owned land reclaimed with permission for reclamation jointly by three persons (negative);
(b) Demand for changes in indictment and the court's discretion;
A. In a case where the Defendant, in collusion with Nonindicted Party (A) and (B), sold state-owned land reclaimed with the permission of reclamation from the authorities to a third party against the intent of the above two parties without entering into a contract for sale and purchase with the State, the said land reclaimed cannot be deemed as co-ownership with the said two parties. Moreover, it cannot be deemed that the Defendant was delegated the management or disposition by the said two persons, and thus, the Defendant does not constitute embezzlement.
B. The request for revision of indictment under Article 298(2) of the Criminal Procedure Act belongs to the court's discretion.
A. Article 355(1) of the Criminal Act
B. Supreme Court Decision 70Do2109 decided Nov. 24, 1970; 70Do2206 decided Dec. 22, 1970; 73Do3004 decided Feb. 12, 1974; 83Do292 decided Apr. 12, 1983
Defendant
Prosecutor
Busan District Court Decision 79No3653 delivered on April 7, 1980
The appeal is dismissed.
The prosecutor's grounds of appeal are examined.
With respect to paragraphs 1 and 3:
In order for the consumption of real estate sale proceeds to be embezzled, it is required that the owner of the real estate has the relationship between the owner and the owner entrusted with the right to dispose of the real estate and receive the disposal proceeds in accordance with the trust relationship. According to the records, as legitimately admitted by the court below, the defendant is acknowledged to have sold the state-owned land developed with the permission of reclamation from the authorities in collaboration with the non-indicted 1 and 2 as if he were owned by the defendant against the above two intent in the situation where the sale contract was not concluded between the state and the state. Thus, it is clear that the land developed cannot be deemed as co-ownership of the defendant and the above two persons, and it cannot be deemed that the defendant was entrusted with the management or disposal of the real estate based on the trust relationship or the disposal proceeds. Therefore, the judgment of the court below to the same effect is just and there is no violation of law by misunderstanding the legal principles on the subject or object of the crime of embezzlement or by failing to exhaust all deliberation.
In addition, since the facts stated in the facts charged are included in the elements of the crime of fraud, the court below erred in the misapprehension of legal principles as to the request for Amendments to Bill of Indictment, which did not reach the point of view even though the request for Amendments to Bill of Indictment has been made, but since the request for Amendments to Bill of Indictment under Article 298 (2) of the Criminal Procedure Act belongs to the court's discretion, the court below's failure to
With respect to the second ground:
In comparison with the judgment of the court below on facts 2 and 3 of the facts charged, the defendant and the non-indicted 1 and 2 established the non-indicted 3 limited partnership company and completed the registration of transfer in the company's future as of November 22, 1974 for the management of the reclaimed farmland, and the non-indicted 1 and 2 were managed by the representative member and the managing member of the company. However, the defendant did not receive the management right from the above company or the above-mentioned disease, and he did not obtain the above management right from the above company or the above-mentioned disease and used the proceeds of farming or lending or using the rent to a third party as stated in each of the facts charged, and it cannot be deemed that the defendant cultivated this land as part of the management act for the above company. Accordingly, the court below did not err in the misapprehension of legal principles as to the crime of breach of trust as to the acquisition of the above company's land, and therefore, it cannot be viewed as being the subject of the crime of breach of trust.
Therefore, the appeal by the prosecutor is dismissed. It is so decided as per Disposition by the assent of all participating Justices.
Justices Lee Jong-soo (Presiding Justice)