횡령
The appeal by the prosecutor is dismissed.
1. According to the evidence submitted by the prosecutor, it is sufficiently recognized that the Defendant, jointly with the victim E on March 9, 2007, purchased approximately KRW 400 (hereinafter “the instant forest”) from the victim E, and transferred only the purchaser status to the Hansung L&A Co., Ltd. without completing the registration of transfer of ownership. In such a case, it is difficult to view the relationship between the Defendant and E as a contractual title trust relationship, and the seller knew that E jointly purchases the instant forest, and therefore, the Defendant was in the position of a custodian of KRW 30 million equivalent to the E’s share out of KRW 60 million received from the Hansung L&A Co., Ltd. for E., the Defendant was sufficiently recognized.
2. Determination
A. In the case of the so-called contract title trust between the relevant law trust and the owner who entered into a title trust agreement and the owner who was unaware of the fact that the trustee became the party concerned and concluded a title trust agreement, the trustee fully acquired the ownership of the real estate in the trust relationship with the truster, and only bears the liability to return unjust enrichment upon the invalidation of the title trust agreement to the truster.
The obligation to return such unjust enrichment is not only a normal obligation owed by a trustee to a truster due to the invalidity of a title trust agreement, but also a delegation agreement between a truster and a trustee to purchase real estate, barring any special circumstance, is null and void, barring any special circumstance.
(1) In light of the above legal principles, the title trust legal doctrine was cancelled by agreement with the owner before the trustee transferred the registration of the trust real estate and received the return of the purchase price. In addition, the title trust legal doctrine was cancelled by agreement with the owner before the trustee transferred the registration of the trust real estate.