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(영문) 대법원 1970. 5. 12. 선고 70도649 판결

[업무상횡령][집18(2)형,009]

Main Issues

Where property is substantially controlled as an assistant to possession and the crime of embezzlement is established.

Summary of Judgment

A person who actually controls the property as an assistant to possession is a person who keeps another's property referred to in embezzlement.

[Reference Provisions]

Article 355 subparag. 1 of the Criminal Act

Reference Cases

Supreme Court Decision 68Do1222 Decided October 29, 1968

Defendant-Appellant

Defendant 1 and one other

Judgment of the lower court

Seoul Criminal District Court Decision 69No2377 delivered on February 25, 1970, the Seoul Criminal District Court Decision 69No2377 delivered on February 25, 1970

Text

All appeals are dismissed.

The number of detention days after the final appeal shall be 60 days in total, including 55 days in total, in each principal sentence of the same Kim Young-young.

Reasons

(1) Defendant’s defense counsel and (2) Defendant’s grounds of appeal are examined together.

The appeal is discussed by the judgment of the court below that the defendants recognized that the defendants are persons obligated to keep and manage the drugs in the warehouse as stated in the judgment of the court below, but the defendants do not have the status of keeping the goods in their business because they differ from the above recognition. However, the defendants asserted that the defendants (1) the warehouse operator (2) the defendants are not driving cars, so the judgment of the court below did not err in the interpretation and application of the theory of the law or in the application of the steam.

However, the custody of embezzlement is a real custody of property and another de facto control. As long as an assistant in possession actually controls property, it can be deemed a custodian (see Supreme Court Decision 68Do1223, Oct. 29, 68; Supreme Court Decision 68Do1223, Oct. 29, 200). According to the records, the defendant can be aware that he is a warehouse, and therefore, the defendant is naturally a criminal status according to the above sale, and (1) the driver of the machinery, which is considered to have no status, is in collusion with the non-indicted 1, 2, etc., who is the above status of embezzlement, and therefore, the court below determined that the above status was established. Therefore, there is no error in the misapprehension of legal principles in the judgment of the court below.

The appeal is without merit, and it is so decided as per Disposition by the assent of all participating parties, by applying Article 390 of the Criminal Procedure Act and Article 57 of the Criminal Act.

The judges of the Supreme Court (Presiding Judge) of the Red Marins (Presiding Judge) of the Republic of Korea