[횡령][공2015상,214]
Whether each co-owner can dispose of his/her specific sectionally owned share solely and freely transfer his/her share registration corresponding thereto in the sectionally owned co-ownership relationship (affirmative)
In the co-owners’ co-ownership relationship, each co-owner agrees to dispose of the specific portion of each co-owner’s own co-owner’s own co-owner’s own co-owner’s own co-owner’s own co-owner’s own co-owner’s own co-owner’s own co-owner’s own co-owner’s own co-owner’s own co-owner’s own co-owner’s share can be freely transferred. This is because the co-owner’s co-owner’s co-owner’s share registration marks the specific portion of each co-owner’s own co-owner’s own co-owner’s own co-owner’s own co-owner’s own share. However, in a case where co-owner’s share is divided into an independent co-owner’s own share of each co-owner’s own co-owner’s co-owner
Article 355(1) of the Criminal Act; Articles 186 and 262 of the Civil Act
Supreme Court Decision 2007Da83632 Decided October 15, 2009 (Gong2009Ha, 1826)
Defendant
Prosecutor
Attorney Kim Jae-chul
Seoul Northern District Court Decision 2010No1737 decided August 11, 2011
The judgment of the court below is reversed, and the case is remanded to the Seoul Northern District Court Panel Division.
The grounds of appeal are examined.
1. The summary of the facts charged of this case is as follows: (a) the Defendant provided his father’s share as collateral and borrowed money; (b) the share of 24,744 square meters of forest land ( Address 1 omitted) at Yangyang-si, Nam-si, Seoul (hereinafter “road address 1 omitted”); (c) was not owned by Nonindicted 1 but merely divided into a title trust but merely divided into 24,744 square meters of forest land ( Address 2 omitted); and (d) 24,748 square meters of forest land ( Address 2 omitted) under the name of Nonindicted 1; and (e) the Defendant received shares of 49,488,744 from Nonindicted 1 in consultation with the Defendant for the establishment of a mortgage to borrow money by 24,744/48,744, out of the land ( Address 2 omitted); and (e) acquired shares of 249,484,7464,7544,254,784, among the victims of the title trust (hereinafter “the victim”).
2. As to this, the court below affirmed the judgment of the first instance court on the ground that it is reasonable to view that, in collusion with the non-indicted 1, the act of setting up the right to collateral security on the ( Address 2 omitted) land in collusion with the non-indicted 1's act of setting up the right to collateral security on the ( Address 1 omitted) land is practically a co-ownership of the non-indicted 1's co-ownership, and in fact, the act of setting up the right to collateral security on the ( Address 2 omitted) land in collusion with the non-indicted 1's act of disposing of the co-ownership share on the ( Address 1 omitted) co-ownership of co-ownership on the land, since the co-ownership registration of the previous land divided is transcribed, and each co-owner agrees to dispose of the specific part of the co-owner's co-ownership freely.
3. However, it is difficult to accept the above determination by the court below for the following reasons.
A. In the sectional co-ownership relationship, each co-owner agrees to dispose of each co-owner's specific sectional ownership freely, and each co-owner can dispose of his/her specific sectional ownership independently and freely transfer his/her share registration corresponding thereto (see Supreme Court Decision 2007Da83632, Oct. 15, 2009, etc.). This is because the co-owner's co-ownership registration internally indicates the specific sectional ownership registration of each co-owner's own co-owner's specific sectional ownership. However, in the case of subdivision into an independent parcel for each specific sectional ownership, the co-ownership registration of the co-ownership in the name of each co-owner, other than the parcel for each specific sectional ownership, cannot be deemed to be a registration indicating the parcel corresponding to the specific sectional ownership of each co-owner. Since each co-owner exists only in mutual title trust relationship, each co-owner's co-owner is in the position of a person who keeps his/her co-owner's share in the relation to the co-owner's co-ownership of the remaining co-ownership
B. In light of the above legal principles, if the land of 49,48 square meters of woodland 49,48 square meters is divided into the land ( Address 1 omitted) and the land ( Address 2 omitted) after the division, which is the sectional ownership of Nonindicted Party 1, the victim, after the division, at the Namyang-si, which was divided by Nonindicted Party 1 and the victims, the registration of Nonindicted Party 1’s share in the land ( Address 2 omitted) after the division is no longer registered to indicate Nonindicted Party 1’s share in the land ( Address 1 omitted) after the division. Since Nonindicted Party 1 is only in the position of the custodian with respect to the share in Nonindicted Party 1’s land ( Address 2 omitted) after the division, the act of establishing collateral security constitutes embezzlement.
C. Nevertheless, the lower court concluded that the crime of embezzlement is not established solely on the grounds indicated in its reasoning and maintained a judgment of innocence at the first instance court. In so doing, the lower court erred by misapprehending the legal doctrine on the status of custodian in embezzlement, thereby adversely affecting the conclusion of the judgment. The ground of appeal assigning this error is with merit
4. 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 Park Poe-young (Presiding Justice)