[2] The case holding that in a case where co-owners who have a majority of shares in a building share share share distribute profits from the lease of the building in accordance with the decision to use and profit-making of the building, and except the victim, the crime of embezzlement is not established since the defendants cannot be deemed to have been in the status of keeping the amount equivalent

Since embezzlement is a crime punishing a person who keeps another's property to embezzled such property, in order to be established, the property that is the subject of embezzlement requires that the property should be owned by another person. The money that the person entrusted with administrative affairs involving receipt of money belongs to the truster's possession at the same time as that of the money entrusted by a third person for the delegating, unless there are special circumstances, unlike the money entrusted for the purpose or use, and the delegated person shall be deemed to belong to the truster's possession at the same time, and the delegated person shall be deemed to have the relation of keeping the money for the delegating (see Supreme Court Decision 2004Do134, Mar. 12, 2004, etc.). However, whether the money received for the delegating person upon delegation of administrative affairs shall be determined by the nature of legal relations and the intent of the party (see Supreme Court Decision 2005Do3627, Nov. 10, 2005).

On the other hand, the method of determining the specific method for using and making profits from the common property among the co-owners is determined by a majority of co-owners' shares pursuant to Article 265 of the Civil Act (see, e.g., Supreme Court Decisions 71Da1040, Jul. 20, 1971; 79Da647, Jun. 12, 1979). A person who has a majority of co-ownership as to the common property can independently decide matters concerning the management of the common property even if there was no prior agreement among the co-owners on the method of management of the common property (see, e.g., Supreme Court Decision 68Da1675, Nov. 26, 196). It is legitimate as the method of management of the common property to determine that a person who has a majority share as to the co-owned property should use and make profits from a specific part of the co-owned property exclusively (see Supreme Court Decision 8Da38355, Sept. 24, 1991).

The court below acknowledged the facts as stated in its reasoning based on the evidence of employment, and determined that even if the defendants started to manage the building of this case lawfully in accordance with the majority of co-owners' right pursuant to Article 265 of the Civil Code, the management act of the majority authorized administrator's co-ownership affects all other co-owners' co-ownership rights, and as co-owners can use and benefit from the whole co-ownership at the share ratio, the remaining amount after deducting necessary expenses from the rent profit of the building of this case can be equally reverted to the co-ownership right holder's share ratio. Therefore, the court below determined that the crime of embezzlement was established where the defendants did not pay the victim the amount equivalent to the share of the building of this case (hereinafter "the amount equivalent to the share of this case") out of the remainder other than the necessary expenses, and distributed the proceeds from the lease from the lessee of the building of this case to the other co-owner's co-ownership rights.

However, according to the facts acknowledged by the court below, the defendants, on the ground that the shares held by the non-indicted 1, 2, 3, and 2, who are co-owners of the building of this case, are majority, have been subject to the authority to determine the specific method for the use and profit-making of the building of this case by the majority of co-owners pursuant to Article 265 of the Civil Act on November 1, 2005, and have been transferred to distribute rent-making profit-making profit-making profit-making profit-making profit-making profit-making profit-making profit-making profit-making profit-making profit-making profit-making profit-making profit-making profit-making profit-making profit-making profit-making profit-making profit-making profit-making profit-making profit-making profit-making profit-making profit-making profit-making profit-making profit-making profit-making profit-making profit-making profit-making profit-making profit-making profit-making profit-making profit-making profit-making profit-making profit-making profit-making profit-making share.

Examining these circumstances in light of the legal principles as seen earlier, the Defendants’ distribution of the amount corresponding to the instant share to the other co-owners without allocating it to the victim is based on the use and profit-making method of the instant building legally determined by the majority of co-owners. The amount equivalent to the instant share belongs to the other co-owners, and it is difficult to view that the amount belongs to the victim immediately (if the co-ownership of the victim was infringed, it is only possible to seek a return of unjust enrichment against the other co-owners). Ultimately, the Defendants cannot be deemed to have held the status of keeping the amount corresponding to the instant share

Nevertheless, the judgment of the court below convicting the Defendants on the premise that the Defendants were in custody of the amount equivalent to the shares in this case for the victim is erroneous in the misapprehension of legal principles as to the status of a person who keeps another's property in embezzlement, which affected the conclusion of the judgment. The ground of appeal

Therefore, without further proceeding to decide on the remaining grounds of appeal, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Cha Han-sung (Presiding Justice)