횡령
The defendant shall be innocent.
The summary of the facts charged of this case is as follows: (a) the Defendant borrowed 30 million won necessary to purchase the pertinent D building 301 on March 30, 2004 (hereinafter “the instant real estate”) from E to the victim on the purchase price of KRW 100 million; (b) in order to secure the above loan loan claims, the Defendant was a person in title trust and custody of the instant real estate from the victim’s property by means of transfer of ownership on April 27, 2004 in the name of the Defendant in order to secure the above loan claims; (c) even though the Defendant received the above loan amount of KRW 30 million from the victim, the Defendant refused to return the dividend surplus amount of KRW 56,257,389, which occurred as a result of the voluntary auction procedure, while receiving the instant real estate on December 5, 201 and keeping it in custody for the victim without any justifiable reason.
The crime of embezzlement is established when a person who keeps another's property embezzled such property. According to the provisions of Article 2 subparagraph 1 and Article 4 of the Act on the Registration of Real Estate under Actual Titleholder's Name, in the case of a so-called contract title trust under which a truster and a trustee enter into a title trust agreement with the owner who was unaware of the fact that a title trust agreement exists, and the trustee entered into a contract for the sale of real estate and made the registration of ownership transfer under the title trust agreement, the change in the real right to the relevant real estate by the registration of ownership transfer is valid. Meanwhile, the title trust agreement between the truster and the trustee is null and void. Accordingly, the trustee shall be deemed to have acquired the ownership of the relevant real estate effectively not only in relation to the seller who is the former owner, but also in relation to the truster.