[1] Whether a person delegated to handle affairs involving receipt of money falls under the ownership of the delegating person, who received money from a third party for the delegating person based on the act (affirmative in principle)

[2] Whether embezzlement is established in a case where a person entrusted with a limited fund and used it for any purpose other than the limited purpose (affirmative)

[3] The case affirming the judgment below holding that the defendants' act constitutes embezzlement on the ground that Gap company's act is in the status of keeping the above payment in custody for Eul company's delegated person Eul, in case where Gap company's representative director and actual operator conspireds with Eul company's investment agreement entered into with Eul company, consignment sales agreement entered into with Eul company, and Gap company's sales proceeds purchased with investment money in accordance with Eul company's delegation of administrative affairs of purchase contract, and arbitrarily consumed it

[1] Article 355 (1) of the Criminal Act / [2] Article 355 (1) of the Criminal Act / [3] Articles 30, 355 (1), and 356 of the Criminal Act; Article 3 (1) 2 of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes

[1] Supreme Court Decision 2005Do3627 Decided November 10, 2005 (Gong2005Ha, 1999), Supreme Court Decision 2009Do2461 Decided June 11, 2009 / [2] Supreme Court Decision 99Do4923 Decided March 14, 200 (Gong2000Sang, 101), Supreme Court Decision 2001Do1660 Decided July 13, 2001, Supreme Court Decision 2007Do9755 Decided February 29, 2008 (Gong2008Sang, 491), Supreme Court Decision 2009Do64823 Decided March 111, 2010

Defendant 1 and one other

Defendants

Attorneys Shin Tae-gil et al.

Seoul High Court Decision 2010No2620 decided December 2, 2010

All appeals are dismissed.

We examine the grounds of appeal.

Since embezzlement is a crime punishing a person who keeps another's property to embezzled such property, in order to constitute embezzlement, the property subject to embezzlement is required to be owned by another person. Money received by a person delegated with administrative affairs involving receipt of money from a third person on behalf of the delegating person based on the act is equivalent to money entrusted for the purpose or use only, barring any special circumstance, and the delegated person belongs to the delegating person's possession at the same time, and the delegated person is in the custody of the delegating person (see Supreme Court Decisions 2005Do3627, Nov. 10, 2005; 2005Do3627, Nov. 10, 2005; 2007Do627, etc.). Thus, the act of using money for purposes other than the limited purpose upon entrustment by the other person, as well as the act of using the money itself, constitutes embezzlement by realizing the intent of unlawful acquisition (see, e.g., Supreme Court Decision 2001Do166279, Jul. 13, 2001).

The court below acknowledged the facts as stated in its reasoning based on its adopted evidence. According to its findings, the court below determined that the act of the defendant 2, who is the representative member of the victim company, is in the status of keeping the money received after selling the investment funds purchased in accordance with the delegation of administrative affairs under the investment agreement entered into between the victim non-indicted 2, the victim non-indicted 3, and the non-indicted 4, and the consignment and the purchase agreement entered into between the victim company and the victim company, and the money received in exchange for the consignment and the purchase agreement entered into between the victim company shall belong to the truster company, and the non-indicted 1, the non-indicted 1, in the status of keeping the funds for the victim company. However, the defendants' act of receiving the sales proceeds from the deposit of the non-indicted 1, the method of using the funds through an unfair way other than the limited method of use, even if the use of the funds was carried out by the victim company, and thereby, constitutes embezzlement. The above act is clearly contrary to the victim company's interest or intent in light of the intent of the victim company.

In light of the above legal principles and records, the judgment of the court below is just, and there is no error of law such as misunderstanding of legal principles as to embezzlement.

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

Justices Min Il-young (Presiding Justice)