Defendant

Defendant

For identity

Attorney Lee Jon-young (National Assembly)

Suwon District Court Decision 2008 Godan3079 Decided December 17, 2009

The judgment of the court below is reversed.

A defendant shall be punished by imprisonment for six months.

However, the execution of the above punishment shall be suspended for two years from the date this judgment became final and conclusive.

Of the facts charged in the instant case, the charge of embezzlement is acquitted.

1. Summary of grounds for appeal;

A. Fact-finding and misapprehension of legal principles

As to the embezzlement of the facts charged in the instant case, ① since the real estate on three lots located in Yan-si, Yan-si (hereinafter “the instant real estate”) is the Defendant’s proprietary property, the sale price received is also owned by the Defendant, and the Defendant and Nonindicted Party 1 did not agree that ownership of some of the above sale price belongs to the said victim immediately. ② Even if the Defendant was under title trust with the victim Nonindicted Party 1, it constitutes a seller’s bona fide title trust, that is, the Defendant’s acquisition of a complete ownership and sale and the sale price received is also owned by the Defendant, and thus, the Defendant cannot be deemed as a person in custody of another’s property. ② The Defendant returned KRW 20 million to the Defendant on December 10, 200 according to the victim Nonindicted Party 1’s return request, and the Defendant did not receive interest on the remainder of the money from the Defendant on December 10, 203, but did not receive interest on the part of the instant real estate. Therefore, the lower court erred by misapprehending the legal doctrine and finding that the Defendant was embezzlement of embezzlement.

B. The point of unfair sentencing

Even if the defendant's embezzlement is recognized, the sentencing of the court below (one hundred months of imprisonment) is too unreasonable.

2. Ex officio determination

First, prior to the judgment on the grounds for appeal by the defendant, the prosecutor tried to examine ex officio prior to the judgment on the grounds for appeal by the defendant, and then embezzled it by refusing to return the above real estate investment proceeds and the proceeds from resale to the victim" in the facts charged of the crime of embezzlement of this case. "The defendant embezzled it by refusing to return the above real estate investment proceeds of KRW 50 million and the proceeds from resale to the victim," and "the defendants embezzled the victim's shares in the above three lots of real estate in collusion with the victim and embezzled the victim's shares in the above three lots of real estate held for the victim." This court permitted this, which led to the change in the subject of the judgment by this court, and the judgment of the court below was no longer maintained.

However, the defendant's assertion of misunderstanding of facts and misapprehension of legal principles is still subject to the judgment of this court within the scope of the modified facts charged, even if there is a ground for ex officio reversal.

3. Judgment on the mistake of facts and misapprehension of legal principles by the defendant

The prosecutor asserts that the real estate of this case belongs to the combination property of the Defendant and the victim non-indicted 1, since the Defendant and the victim non-indicted 1 purchased the real estate of this case after forming a partnership with the agreement, and thus the real estate of this case belongs to the combination property of the Defendant and the victim non-indicted 1. Thus, the act of the Defendant’s disposal of the real estate of this case to the above victim constitutes the crime of embezzlement

On the other hand, a partnership agreement is a partnership agreement under the Civil Act. The partnership agreement under the Civil Act is a contract under which two or more persons mutually invest and agree to jointly operate a business, and the partnership agreement under the Civil Act is limited to the agreement under which they jointly operate a specific business, and the degree of achievement of the common purpose can not be deemed as satisfying the requirements for establishment of the partnership. In addition, where several persons jointly purchase real estate and obtain profits from resale for a joint venture, the purpose of the joint purchase is to acquire profits from the partnership, at least to be purchased from the partnership, the joint buyers should belong to the partnership's property, not the land purchased, and to be disposed of for all accounts based on the intention of all the joint buyers (see Supreme Court Decision 2005Da5140, Jun. 14, 2007).

According to the reasoning of the judgment below, even if the court below acknowledged the above real estate sale proceeds as follows, ① did not prepare a written agreement or contract between the parties, and the victim Nonindicted Party 1 decided to distribute profits from the sale of the above real estate later with the defendant's investment in real estate." ② The sale of real estate is stated in the sales contract as the purchaser at the time of the purchase of the above real estate, and the ownership transfer is made in the name of Defendant 2 (Supreme Court Decision 2), and Nonindicted Party 3, an investor of the above real estate, who has invested in the funds for purchase of the above real estate, because it is difficult to view the above real estate as the sale proceeds of the above real estate to constitute a sale proceeds agreement or a sale proceeds of the above real estate, and thus, it is difficult to view the above real estate as a sale proceeds agreement between the defendant and the non-indicted 1, who is an investor of the above real estate, as the sale proceeds of the above real estate, because it is difficult to view the above real estate as a sale proceeds agreement between the victim and the non-indicted 1, who has not completed the ownership transfer of the above real property.

4. Conclusion

Therefore, the judgment of the court below is reversed in accordance with Article 364 (2) and (6) of the Criminal Procedure Act without examining the defendant's allegation of unfair sentencing, and the judgment of the court below is reversed in its entirety, and it is again decided as follows, after pleading, by the pleading, because there is an error of law that affected the conclusion of the judgment due to misunderstanding of facts and misunderstanding of legal principles as to the embezzlement, and the remaining criminal facts in the judgment of the court below are concurrent crimes under the former part of Article

The summary of the facts constituting an offense recognized by this court and the gist of the evidence is as follows: (a) deleted Section 1(b) in the column of the facts constituting an offense in the judgment of the court below; and (b) deleted “1. Credit card sales slip copies and a statement of passbook transactions” in the summary of the evidence of the judgment of the court below, and therefore, it is identical to the corresponding column of

1. Article relevant to the facts constituting an offense and the selection of punishment;

Articles 347(1), 30 (Fraud, Selection of Imprisonment) of the Criminal Act, Article 257(1) of the Criminal Act (Bodily Injury and Selection of Imprisonment)

1. Aggravation for concurrent crimes;

Article 37 (former part), Article 38 (1) 2, and Article 50 of the Criminal Act

1. Suspension of execution;

Article 62(1) of the Criminal Act (The following extenuating circumstances in the Grounds for Sentencing)

The defendant is under detention for a considerable period of time and reflects his mistake in depth, the defendant has no record of being punished for the same crime so far, there has been no criminal record of suspended execution or more, has been agreed with non-indicted 3, who is the defrauded, and other factors of sentencing specified in the arguments of this case, such as the defendant's age, character and conduct, environment, motive, means and consequence of the crime, etc., shall be determined as ordered by taking into account

Of the facts charged of this case, the embezzlement of the defendant and co-defendant 2 of the first instance trial (hereinafter "defendants, etc.") purchased the above three real estate from the first instance court's logistics warehouse on September 2002 to operate a business with the victim non-indicted 1 and the second instance court's company (hereinafter "defendants, etc.") and resell it, and concluded a contract to settle real estate investment and resale profits after selling it. On September 17, 2002, the defendant acquired the above three real estate from the victim as real estate investment money and kept it for the victim after acquiring the ownership of the above three real estate under the name of the defendant, etc. Around September 17, 200, the defendant et al. acquired the above three real estate from the victim as real estate investment money and sold it to the third party at will after selling the above three real estate from the victim. Accordingly, the defendant et al. refused to return the real estate investment money and return it to the victim by asserting that it was simply borrowed, not a real estate investment money. Accordingly, the defendant et al. embezzled the above three million won.

Judges Park Jae-sik (Presiding Judge)