특정경제범죄가중처벌등에관한법률위반(횡령)
The prosecutor's appeal is dismissed.
1. The summary of the grounds for appeal (misunderstanding of legal principles) (hereinafter “F”) is as follows: (a) the Defendant invested KRW 111 million in Y and I (hereinafter “the instant real estate”) in Y and Ha (hereinafter “the instant real estate”) in the Chungcheongnam-gun, Chungcheongnam-gun, Chungcheongnam-gun, which was operated by G along with E (hereinafter “F”), together with the Defendant; and (b) the Defendant made a provisional registration to preserve the Defendant’s right to claim for the registration of transfer of ownership of the instant real estate at the F bid in order to secure the total amount of KRW 550 million (hereinafter “the instant provisional registration”) in the name of the Defendant to secure the right to claim for the registration of transfer of ownership in the name of the Defendant (hereinafter “the instant provisional registration”). This constitutes a case where the security right itself is disposed of at will and constitutes a crime violating the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Embezzlement).
Even if the instant provisional registration, which was made under the name of the Defendant, does not constitute the property that is the object of embezzlement, is not the subject of embezzlement, in light of the circumstances such as the circumstance that the considerable portion of the secured claim belongs to E in fact, and the Defendant and E were formed with respect to the foregoing investment, a real effective security is registered notwithstanding the Act on the Registration under the Name of Real Estate Holder (hereinafter “Real Estate Real Name Act”), and thus, the Defendant has the duty to preserve and manage the provisional registration of this case for E.
However, as long as the defendant arbitrarily disposed of the provisional registration of this case to J in violation of his duties, it constitutes a crime of breach of trust.
Nevertheless, the court below rendered a not-guilty verdict on the violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Embezzlement) and did not make any judgment on the establishment of the crime of breach of trust without going through the procedures such as changes in indictment for breach of trust. In addition, the court below erred by misapprehending the legal principles, which affected the conclusion
2. This.