[2] Where a court should ex officio recognize facts constituting a crime different from those stated in the indictment

[3] The case holding that in a case where a public prosecutor indicted a seller of a building for embezzlement on the premise that a title trust relationship was established between the seller and the buyer in the process of voluntary auction conducted through the execution of the right to collateral security established in the building by citing that the title of registration was already registered even though the sale price had already been fully paid, such refusal to return constitutes embezzlement, and thus, the court cannot render a verdict of not guilty on the ground that there was no title trust relationship between the two parties, and should revise the indictment ex officio within the scope of the identity of the facts charged, and review and determine

1. The summary of the facts charged of this case is as follows: "The defendant transferred the building in Gwangjin-gu (hereinafter, omitted) in Seoul Special Metropolitan City (hereinafter, "the building in this case") owned by the defendant at the real estate brokerage office in Songpa-dong, Songpa-gu, Seoul Special Metropolitan City around September 2001 to the victim non-indicted 1, and registered the ownership of the building in the name of the victim in accordance with the title trust agreement with the victim after receiving the purchase price from the victim and kept the ownership of the building in the name of the victim for the defendant, while the voluntary auction of the real estate was conducted for the victim, and received from the Seoul Eastern District Court as the remainder of the successful bid for the above real estate on February 7, 2006 (hereinafter, "the dividend in this case"). Accordingly, the dividend in this case was returned to the victim, who is the actual owner of the building in this case, and embezzled it without any justifiable reason."

2. Existence of the title trust agreement

In full view of the selected evidence, the court below found that the victim had completed the registration of ownership transfer on the building of this case under the name of 1982, and thereafter had started auction on the building of this case since that time. On June 27, 200, the defendant was awarded a contract for the building of this case on the 28th day of the same month, and requested the defendant to sell the building of this case to him for the purpose of continuing residence in the building of this case. The defendant did not bear any obligation to obtain the registration of ownership transfer under the name of 10,000,000 won for the loan of this case from 10,000 won. The defendant did not have any obligation to obtain the registration of ownership transfer from 10,000 won for the loan of this case under the name of 10,000 won for the non-indicted 1 to the non-indicted 5, but the defendant did not have any obligation to obtain the remainder of the loan to the non-indicted 1,000,000 won.

3. Whether the defendant constitutes a person who keeps dividends of this case for a victim

A. According to the facts duly confirmed by the court below, the defendant sold the building of this case to the victim, received the purchase price, and delivered the documents necessary for the registration of transfer of ownership to the victim, but the name of the registration remains in the defendant due to the circumstances of the victim. In such a case, in the internal relationship between the victim and the defendant, the de facto right to dispose of the building of this case can be deemed to have already been attributed to the victim, and the defendant can only receive the dividend of this case, which is a modified object of the building of this case, only for the purpose of transferring it to the victim. Thus, the dividend of this case received by the defendant belongs to the victim's ownership between the defendant and the victim, and the defendant is in a position to manage the affairs to cooperate in the application of registration of the victim for registration of the building of this case for the victim. Considering that the defendant is in a position to keep the dividend

Therefore, the defendant's refusal to return the dividend of this case without paying it to the victim constitutes embezzlement.

B. In a case where it is deemed that there is no concern about the substantial disadvantage to the defendant's exercise of his right to defense in light of the progress of the trial within the scope consistent with the facts charged, the court may, even if the indictment was not modified, recognize ex officio a crime different from the facts charged as stated in the indictment, and in such a case, if the indictment is not punished for the reason that the facts charged in comparison with the facts charged for which the indictment was instituted was not modified, it is recognized that it goes against justice and equity in light of the purpose of the criminal procedure, such as prompt discovery of substantial truth by due process, if the indictment was not modified, then the court must recognize the facts charged ex officio (see Supreme Court Decisions 200Do4419, Nov. 22, 2002; 2003Do1366, May 13, 2003, etc.).

In light of the above legal principles, the facts charged in the instant case and the facts charged as seen above are different from the legal evaluation of the status where the Defendant did not complete ownership transfer registration in the victim’s name even after selling the instant building to the victim and the Defendant’s name is maintained. It is within the scope recognized as identical to the facts charged, and even if the Defendant acknowledged the status of custodian of the dividend in the instant case as the seller who is not the title trustee, it does not seem to have any concern over causing substantial disadvantages to the Defendant’s exercise of the right to defense. Thus, the Defendant’s failure to punish the Defendant solely on the ground that the title trust relationship between the Defendant and the victim is not recognized, is obviously contrary to justice and

C. Therefore, the lower court acquitted the Defendant on the ground that the Defendant had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had a title trust relation with the instant building. In so doing

4. Conclusion

Therefore, the judgment of the court below is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices.

Justices Lee Hong-hoon (Presiding Justice)