[2] The method of determining whether a “dispositive act”, which is a requisite for the establishment of a crime of fraud for the purpose of exempting debt

[3] In a case where a transfer for security and a payment contract was concluded in lieu of a loan borrowed debt, but part of an obligation was appropriated before and after the contract, the case denying the establishment of fraud aimed at the exemption of an obligation on the ground that there is no act of disposal to definitely exempt or extinguish an existing obligation

[4] Where a debtor disposes of the object of transfer for security, the part of embezzlement (negative)

1. As to the establishment of embezzlement related to the shock of this case

Since embezzlement is a crime of danger, such as ownership of another person's property, and if there is a risk of infringement of the principal right, it is established even if the result of infringement is not occurred. Thus, the act of embezzlement by a person who keeps another person's property as collateral without his/her consent is an embezzlement that expresses his/her intent of unlawful acquisition, and it constitutes embezzlement regardless of whether the act of offering collateral is invalid or the act of infringing on the ownership of the property occurs (see Supreme Court Decision 2002Do219, Nov. 13, 2002).

The court below found the facts as stated in its reasoning based on the evidence duly employed, and found the defendant guilty of embezzlement in relation to the shock machine of this case on the ground that the defendant's assertion that the shock machine of this case was supplied to the victim corporation as security by means of transfer is not acceptable against the objective contents of the sales contract concerning the shock machine of this case, which is a disposal document, or against the facts acknowledged in the judgment below.

Examining the reasoning of the judgment below in light of the above legal principles and related evidence, we affirm the fact-finding and judgment of the court below that the defendant sold the shock machine of this case to the victim corporation.

The lower court did not err by misapprehending the legal doctrine regarding the establishment of embezzlement or by failing to exhaust all necessary deliberations, as alleged in the grounds of appeal.

2. As to the establishment of the crime of violation of the Act on the Aggravated Punishment, etc. of Specific Crimes relating to the instant machinery

The court below found the defendant guilty of the crime of violation of the Act on the Aggravated Punishment, etc. of Specific Crimes (Fraud) related to the machinery of this case on the ground that it is reasonable to view that the defendant transferred the machinery of this case to the victim corporation as a substitute for the repayment of loan obligation, on the ground that part of the machinery of this case is not owned by the defendant, and part of the machinery of this case was established by the Busan bank, but it can be recognized that the defendant acquired property profits by transferring the machinery of this case to the above victim corporation instead of the victim corporation corporation's transfer of loan repayment in lieu of the loan repayment.

However, in fraud, the term "property profit" includes not only active profits such as acquisition of bonds or provision of security, but also passive profits such as exemption from debts. However, in order for fraud to be established with respect to the property profit, which is the exemption of debts beyond the extent of simple deferment of debt repayment, there must be a creditor's disposal act extinguishing or exempting the debt in a conclusive manner due to the debtor's deception. Thus, it should not be concluded that such disposal act existed merely because bonds and other property rights have been transferred for the performance of the debt. Whether such disposal act was established solely on the premise that the debt and other property rights have been finally extinguished or exempted, and then the establishment of fraud for the purpose of exemption of the debt should be determined (see Supreme Court Decision 2008Do8600, Dec. 24, 2008).

However, according to the facts found by the court below, even after the machinery of this case was transferred from the defendant as payment in lieu of the loan obligation amounting to KRW 600 million, the victim corporation demanded the defendant to provide a collateral again in preparation for the case where the machinery of this case cannot be recovered, and the defendant completed provisional registration on the factory building and its site on August 10, 2006. According to the records, the defendant paid KRW 24,49 billion to the victim corporation or the non-indicted who is the actual private owner of the victim corporation after concluding the payment in substitution contract as above until October 21 of the same year from July 2006 to October 10 of the same year. The victim corporation can be acknowledged that the defendant paid KRW 112,14,000,000 to the above 60,000 won out of the money received as above, part of the principal and interest obligation of KRW 112,60,000,000,000 to the above 60,000 won.

Nevertheless, the lower court found the Defendant guilty of the charge of violation of the Act on the Aggravated Punishment, etc. of Specific Crimes (Fraud) solely for the reasons indicated in its holding. In so doing, the lower court erred by misapprehending the legal doctrine of fraud due to exemption from debt,

The ground of appeal pointing this out is with merit.

3. As to the establishment of embezzlement related to machinery Nos. 2, 3, and 4 among the instant machinery

The court below found the defendant guilty of embezzlement as to the machinery of this case 2, 3, and 4 of the machinery of this case on the ground that it can be sufficiently recognized that the fact that the defendant embezzled the machinery of this case 1.1 billion won from the Busan bank without obtaining the above victim corporation's consent or approval when he borrowed money from the Busan bank, on the premise that the defendant transferred the machinery of this case to the victim corporation as a substitute for the repayment of loan obligation.

However, in a case where a debtor provides a creditor with a movable as a security for transfer and occupies it by the way of possession revision, ownership of such movable still remains reserved in the debtor, and thus, the debtor takes custody of his/her own movable, so even if he/she disposes of the object of transfer for transfer to a third party or provided it as a security, it does not constitute embezzlement (see Supreme Court Decision 80Do2097, Nov. 11, 1980, etc.)

As seen earlier, even after the payment agreement between the defendant and the victim corporation was reached, the victim corporation met part of the existing 600 million won of the loan principal and interest of the previous 600 million won as part of the money received from the defendant from July 21, 2006. The victim corporation again demanded the defendant to provide security in preparation for the case where the victim corporation cannot recover 600 million won with the instant machines, and the defendant received provisional registration on the factory building and site on August 10, 2006. In light of the circumstances such as the fact that the defendant continued to possess and use the 2,3,4 machinery from among the instant machines even after the completion of the payment agreement on accord and satisfaction, it is reasonable to view that the defendant and the victim corporation established the security right to collateral for the above 2,3,4,000 won among the instant machines, and even if 200,000 won cannot be punished for the crime of breach of trust by the defendant's mortgage right to the above 30th,000 factories.

Nevertheless, the lower court found the Defendant guilty of this part of the facts charged of embezzlement. In so doing, the lower court erred by misapprehending the legal doctrine on the establishment of embezzlement, thereby adversely affecting the conclusion of the judgment.

The ground of appeal pointing this out is with merit.

4. Conclusion

Therefore, the part of the judgment of the court below regarding embezzlement related to the violation of the Act on the Aggravated Punishment, etc. of Specific Crimes and embezzlement related to the Nos. 2, 3, and 4 among the machinery of this case should be reversed. Since this part is a concurrent crime relation between the remaining crimes of the defendant who is found guilty and the defendant under the former part of Article 37 of the Criminal Act, the judgment of the court below is reversed in whole 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

Justices Cha Han-sung (Presiding Justice)