The Defendant, at the same time and place, purchased the instant real estate jointly with the victim, agreed that Nonindicted 8, Nonindicted 9, Nonindicted 10, and the victim (hereinafter “victim”) who participated in the joint purchase through the victim other than the Defendant (hereinafter “victim”) will bear a total of KRW 300 million, and the Defendant would bear KRW 190 million, and subsequently, on August 24, 2004, registered the ownership transfer of the victim’s share in title in the name of the Defendant for convenience at the time of sale, and completed the registration of the ownership transfer on August 24, 2004.

Therefore, the Defendant borrowed 60 million won from Non-Indicted 2 on May 3, 2007 to non-Indicted 2 and the maximum debt amount 60 million won on the land of this case without the consent of the victim, and embezzled 50 million won on September 4, 2007 to Non-Indicted 3 agricultural cooperatives of this case on September 4, 2008 with additional loans of KRW 50 million from Non-Indicted 3 agricultural cooperatives of this case on September 4, 2008, by changing the maximum debt amount of KRW 230 million from the mortgagee, the maximum debt amount of KRW 160 million, which was established prior to the loan of KRW 30 million from Non-Indicted 3 agricultural cooperatives of this case (the maximum debt amount of KRW 160 million) x 1592/49/49 of the real estate of this case (the share of this case).

1. In the third trial records, the statements made by the witness Nonindicted 4 and △△△△ in each statement

1. Each statement made by Nonindicted 6, Nonindicted 9, and Nonindicted 11 in the fourth trial record

1. Each statement made by Nonindicted 8, Nonindicted 5, Nonindicted 7, and Nonindicted 1 in the fifth trial record

1. Each police statement on Nonindicted 4, △△△, Nonindicted 6, and Nonindicted 8

1. A certificate (as for title 1 to 17 of the investigation record), details of bank transactions, details of stock trade, contracts, written confirmation (as for title 1 to 17 of the investigation record), and each certified copy of the register;

Article 347 (1) of the Criminal Act (Selection of Imprisonment)

1. Aggravation for concurrent crimes;

Article 37 (former part), Article 38 (1) 2, and Article 50 of the Criminal Act

A. The assertion

(1) Even if the Defendant was partially entrusted with the shares of the instant real estate by Nonindicted 4, Nonindicted 4 was not a party to a sales contract to purchase the instant real estate from Nonindicted 1, but the Defendant was a party to the instant sales contract that purchased the instant real estate from Nonindicted 1, and thus, the said title trust between Nonindicted 4 and the Defendant constitutes a so-called contract title trust relationship.

(2) Therefore, if Nonindicted Party 1, the seller of the instant real estate, was unaware of the title trust agreement between the Defendant and Nonindicted 4, i.e., in good faith, the Defendant is entitled to lawfully acquire ownership from Nonindicted 1, and thus, the ownership transfer registration made under the name of the Defendant is valid. Meanwhile, since a title trust agreement between Nonindicted 4 and the Defendant is null and void, the Defendant, who is the trustee, is not in a position of the person who keeps the instant real estate in a trust relationship with Nonindicted 4, and if the seller, if he is in bad faith, that is, Nonindicted 1, the seller, is aware of the title trust agreement between the Defendant and Nonindicted 4, then in such a case, the title trust agreement becomes null and void pursuant to the Act on the Registration of Real Estate under Actual Titleholder’s Name, and the ownership of the real estate is still attributed to Nonindicted 1. Accordingly, the Defendant, the trustee, was not in a position of the person who

B. Determination

(1) As alleged by the Defendant and his defense counsel, the Defendant is a party to a sales contract with Nonindicted Party 1, a real estate seller, and Nonindicted Party 4 is not a party to the sales contract of this case, and if Nonindicted Party 4 is not a party to the sales contract of this case, the Defendant is not a party to the sales contract with Nonindicted Party 1, and if Nonindicted Party 4 is a party to the sales contract with Nonindicted Party 4, and if the title trust contract was concluded between Nonindicted Party 4 and the Defendant, Nonindicted Party 4 is a party to the sales contract with Nonindicted Party 4, which is a party to the sales contract of this case, to be entrusted with Nonindicted Party 4’s share, this will be considered as a party

(2) As to whom a party to a contract is deemed a party to a contract, first of all, a party to the contract shall be determined as a party to the contract in accordance with the same intent if the intent of the actor and the other party is in accord. If the intent of the actor and the other party are not in accord, a party shall be determined in accordance with who would be understood as a party to the contract if the other party is a reasonable person based on the specific circumstances before and after the conclusion of the contract, such as the nature, content, purpose, and details of the contract (see Supreme Court Decision 2010Da8319, 83205, Feb.

In light of the above facts, the sales contract of this case was concluded on the non-indicted 4, and the non-indicted 1/4 and the non-indicted 4's share was written on the non-indicted 1/4, and the non-indicted 4's share was not written on the non-indicted 4's purchase. Meanwhile, according to the records, the non-indicted 4 and the defendant recommended the purchase of the real estate of this case among the sales contract of this case. However, the non-indicted 4, etc. were 50% of the so-called Suwon Team and 50% of the Daejeon Team, and the co-party 4 was 50 billion won of the real estate sales contract, and the non-indicted 6, the non-indicted 5 and the non-indicted 7's share were to be jointly purchased on the non-indicted 4 and the non-indicted 5's share were to be jointly purchased on the non-indicted 400 million won, and the non-indicted 4 and the non-indicted 7 were to be the non-indicted 4000 million won of the sales contract of this case.

C. Conclusion

Therefore, the Defendant is a trustee of Nonindicted 4’s share and is in the position of a person who keeps it for Nonindicted 4. Therefore, the Defendant is a party to the instant sales contract, and Nonindicted 4 is not a party to the sales contract, and the Defendant’s assertion that a title trust agreement between Nonindicted 4 and the Defendant is a title trust is rejected

2. Determination on the assertion of an ex post facto act

A. The assertion

Even if the Defendant’s act of establishing a collateral security constitutes embezzlement, the act of establishing a collateral security on September 4, 2008, the second person constitutes an act of establishing a collateral security constitutes an act ex post facto crime.

B. Determination

(1) In the crime of embezzlement, once a specific act of disposal (hereinafter “prior act”) causes danger of infringement of legal interest, and then a new act of disposal (hereinafter “instant act of disposal”) was committed before the occurrence of a result of infringement of legal interest, which is a final act of embezzlement, the risk of the subsequent act of disposal is merely a means to complete the risk of infringement of legal interest, or can naturally be anticipated in the process, and a new risk is not added. Thus, the risk of the subsequent act of disposal is included in the risk of being assessed by the crime of embezzlement already established by the prior act of disposal. Thus, the subsequent act of disposal constitutes an act of ex post facto punishment.

However, in the event that the latter dispositive act goes beyond this and thus increases the risk of infringement of legal interests by adding new risks that cannot be anticipated by the preceding dispositive act, or causes the outcome of infringement of legal interests in a manner unrelated to the preceding dispositive act, such act exceeds the risk assessed by the crime of embezzlement, barring special circumstances, it shall be deemed that the crime of embezzlement is established separately, barring special circumstances.

Even if a person who has kept another person's real estate had an intention of unlawful acquisition and completed a registration of creation of a mortgage on the real estate, and thus, once the act of embezzlement was completed, if the risk of infringement of legal interests has increased or sold the real estate to increase the risk of infringement of legal interests by adding a new risk of infringement of legal interests by establishing a new mortgage on the same real estate, and thereby resulting in a result of infringement of legal interests, regardless of the existing mortgage, such act shall not be deemed an act of misappropriation, unless there are special circumstances, since the risk of infringement of legal interests is added or a result of infringement of legal interests has been caused beyond the scope naturally anticipated by the mortgage, such as sale through a voluntary auction for the execution of the initial mortgage (Supreme Court en banc Decision 2010Do10500 Decided February 21,

(2) In light of the above legal principles, the Defendant’s act of completing the registration of the establishment of the second right to collateral security in this case added new risks that cannot be anticipated to be a prior disposal act, and thus, it appears to constitute an act of increasing the risk of infringement of legal interests, and thus, it constitutes a separate embezzlement. Therefore, the Defendant and the defense counsel’

It is so decided as per Disposition for the above reasons.

Judges Yang Sung-chul