① Since the lower court acknowledged the trust relationship with respect to the remaining real estate except for the real estate Nos. 19, 24 as indicated in the facts charged in the instant case, it is inconsistent with a number of Supreme Court precedents (a majority, 2002Do2926, etc.).

② The lower court cited as the ground of innocence that punishing a trustee’s act of disposal in the name of embezzlement and protecting the truster in the name of the title is inconsistent with that stipulated under the Act on the Registration of Real Estate under Actual Titleholder’s Name (hereinafter “Real Estate Real Name Act”). However, the crime of embezzlement and the crime of violation of the Real Estate Real Name Act differs from the legislative intent and protection of legal interests and interests, and thus, it is inappropriate to serve as the ground of innocence.

③ Real estate Nos. 19,24 listed in the facts charged of the instant case also constitutes a title trust relationship with other real estate.

2. Determination

A. Article 355(1) of the Criminal Act provides that where a trustee in the name of the trust in the name of the so-called intermediate omission registry disposes of real estate entrusted at will, the crime of embezzlement is established in relation to the nominal truster. The principal agent in the crime of embezzlement should be the person who keeps another’s property, and shall be determined in accordance with the Civil Act, the Commercial Act, and the Commercial Act, and other substantive laws, whether it is another’s property

Since custody in embezzlement means the possession of property through a consignment relationship, in order to constitute embezzlement, there is a legally or de facto consignment fiduciary relationship between the custodian of the property and the owner of the property (or the owner of other principal rights).

Such consignment trust relationship is not only based on a contract such as the delegation of the lending contract, but also can be established based on the principle of good faith, etc., but also on the other party's property, the essence of embezzlement of which is entrusted based on a fiduciary relationship.