In a case where a person entrusted with the affairs involving receipt of money does not belong to the truster's ownership of the money received from a third person for the delegating person, whether the refusal to return the money constitutes embezzlement (negative)

Article 355 of the Criminal Act

[Plaintiff-Appellant] Plaintiff 1 and 1 other (Law Firm Doz., Counsel for plaintiff-appellant)

Defendant

Prosecutor

Daegu District Court Decision 2006No3656 Decided February 8, 2007

The appeal is dismissed.

We examine the grounds of appeal.

Since embezzlement is a crime of punishing a person who keeps another's property to embezzled such property, in order to be established, the property that is the subject of embezzlement must be the ownership of another person (see Supreme Court Decision 96Do2170, Oct. 29, 1996, etc.). Thus, even if a person entrusted with administrative affairs involving receipt of money receives money from a third party on behalf of the delegating person based on such act, if this does not belong to the delegating person's ownership, the delegated person who refuses to return the money cannot be punished for embezzlement.

According to the reasoning of the judgment of the court below, the court below held that even if the defendant agreed to receive deposit money and return 41 million won among them to the large-scale construction company (hereinafter "large-scale construction"), the amount received under the defendant's name belongs to the ownership of the defendant in the distribution procedure, and in light of the records and the above legal principles, unless the amount subject to embezzlement falls under the ownership of large-scale construction, the defendant cannot be punished for embezzlement on the ground that he refuses to return KRW 41 million against the above agreement. Thus, the court below's decision that upheld the judgment of the court of first instance that acquitted the facts charged of this case is just and acceptable, and there is no error of law such as misunderstanding the legal principles as to the person who keeps another's property in the crime of embezzlement as alleged in the ground of appeal or violating the legal principles as to the violation of the precedents.

Therefore, the appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Ahn Dai-hee (Presiding Justice)