[횡령][공2008하,1263]
In case where the embezzlement is the owner of the damaged article and the truster have a relationship with one another, whether the same shall apply to relatives (negative)
In cases where the embezzlement takes custody of an article in his/her custody for the owner and embezzled it, the provisions concerning the crime between relatives under Article 328(2) of the Criminal Act which is applied mutatis mutandis by Article 361 of the Criminal Act shall apply only to cases where the offender and the owner of the damaged article and the truster have a relationship of relationship as prescribed in the same Article. This does not apply to cases where only the relationship between the embezzlement offender and the owner of the damaged article exists or only between the trustor and the truster of the damaged article.
Articles 328(2), 355(1), and 361 of the Criminal Act
[Plaintiff-Appellant] Plaintiff 1 and 1 other (Law Firm Gyeong, Attorneys Park Jong-soo et al., Counsel for plaintiff-appellant)
Defendant
Prosecutor
Suwon District Court Decision 2007No1104 decided April 4, 2008
The judgment of the court below is reversed, and the case is remanded to the District Court Panel Division.
We examine the grounds of appeal.
1. The crime of embezzlement is established when the principal right, such as ownership of another person's property, is protected by the law of protection, and the person who holds another's property, contrary to the trust relationship, is embezzlement or refuses to return it. Thus, in a case where the principal takes custody of the goods held by the truster for the owner and embezzled it, the provisions concerning the crime between relatives under Article 328 (2) which is applicable mutatis mutandis by Article 361 of the Criminal Act shall apply only to the case where the principal has a relationship under the same Article between the principal and the owner of the damaged goods and the truster, and in a case where only the principal has a relationship between the embezzlement and the owner of the damaged goods, or only between the principal and the damaged goods have a relationship, such relationship shall not apply
However, the court below dismissed the prosecution by applying the provision on the crime between the above relatives on the ground that "the defendant was guilty by using the above amount of KRW 2,00,000 for voluntary use while he received from Nonindicted 3 the above money from him to deliver it to Nonindicted 2, along with the request by Nonindicted 1 for delivery of the above amount of KRW 2,00,000,000 from him." The court below rejected the prosecution by applying the provision on the crime between the above relatives on the ground that it is recognized that the defendant was the third degree of relationship of the victim Nonindicted 1, and there is no evidence to acknowledge that Nonindicted 1 filed a complaint against the defendant. The defendant was only in relation to Nonindicted 1, who was the owner of the victim of the victim of this case, and there is only a relationship with the victim of the victim of this case with Nonindicted 3, the truster of the victim of this case, and if there is no relationship under the above provision of the above Act, Article 328 (2) of the Criminal Act applied mutatis mutandis under Article 361 of the Criminal Act to the defendant cannot be applied.
2. Therefore, 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 Kim Young-ran (Presiding Justice)