1. Where a title truster and a title trustee entered into a so-called contract title trust agreement with the owner who is aware of the fact that the title trustee becomes a party to the contract and entered into a sale contract on real estate, and the registration of ownership transfer of the pertinent real estate is null and void pursuant to the main sentence of Article 4(2) of the Act on the Registration of Real Estate under Actual Titleholder’s Name (hereinafter “Real Estate Real Name Act”), and the ownership of the pertinent real estate is owned by the seller as it is (see Supreme Court Decision 2007Do2168, May 14, 2009). In addition, even if the title trustee bears the duty to return the purchase price, etc. as unjust enrichment to the title truster, it is difficult to view that the title trustee is in the position of “a person who takes charge of another’s business” in the crime of embezzlement (see Supreme Court Decision 201Do2728, Sept. 25, 2001; 2008Do4557, Apr. 25, 2008).

Meanwhile, in the above case, the title trustee is obligated to cancel the registration of ownership transfer against the seller; however, since the registration of ownership transfer is null and void from the beginning, the title trustee merely complies with the seller's claim for the removal of interference based on ownership as the other party. Even if there is a possibility that the disposal act between the third party may be effective pursuant to Article 4 (3) of the Real Estate Real Name Act, it is merely an exception to the invalidation of the title trust agreement to protect the third party, which is the other party to the transaction, and it cannot be viewed as a premise that there is a fiduciary relationship between the seller and the title trustee to make the above disposal act effective. Thus, the title trustee cannot be deemed to be in the position of "person who keeps another's property" in the crime of embezzlement or "person who administers another's business" in the crime of breach of trust on account of the existence of the registration duty or the possibility of effective disposal by the title trustee.

2. In full view of the adopted evidence, the lower court found that, at the time of the sales contract, Nonindicted Party 1 sold a dry field 2,922m2 (hereinafter “the instant real estate”) in Seocho-gu, Seocheon-gu, Seocheon-gu, Seocheon-gu, Seocheon-gu, and confirmed that at the time of the sales contract, the actual purchaser was the victim of the instant case and the Defendant was aware of the fact that he was the party to the sales contract under the instant title trust agreement with the victim and was only engaged in the registration of ownership transfer, and that the Defendant, a title trustee, set up a collateral security on the instant

However, in light of the above legal principles as seen earlier, the title trust agreement of this case constitutes so-called “a malicious contract title trust,” which the seller knew of the fact that the purchaser entered into a contract with the title trustee, and thus, the registration of ownership transfer completed in the name of the Defendant is null and void, and Nonindicted Party 1, the seller, holds ownership as it is. Thus, on the premise that the ownership of the real estate of this case is the victim, the Defendant cannot be deemed to be in the position of “a person who keeps another’s property”

Nevertheless, the court below held the Defendant guilty of the facts charged of embezzlement on the premise that the Defendant deemed that he was in the position of a person who has custody of the instant real estate against the victim, a title truster. In so doing, the court below erred by misapprehending the legal principles on the scope of “a person who keeps another’s property” in embezzlement, thereby affecting

3. 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 Shin (Presiding Justice)