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The judgment below is reversed, and the case is remanded to the Seoul Southern District Court Panel Division.
Reasons
1. The decision shall be made ex officio;
A. (1) As to embezzlement, the principal agent of embezzlement as prescribed by Article 355(1) of the Criminal Act must be the person who keeps another’s property, and shall be determined by the Civil Act, the Commercial Act, and the Commercial Act, and other substantive laws, whether it is not another’s property.
Since custody in embezzlement means the possession of property through a consignment relationship, in order to constitute embezzlement, there is a legally or de facto consignment fiduciary relationship between the custodian of the property and the owner of the property (or the owner of other principal rights).
In light of the fact that the essence of the crime of embezzlement is to unlawfully acquire another person’s goods entrusted on the basis of a fiduciary relationship, the fiduciary relationship is reasonable to determine that the fiduciary relationship is based on trust worth protecting the crime of embezzlement.
Therefore, in cases where a title truster, in violation of the Act on the Registration of Real Estate Real Name with respect to the real estate purchased by a title truster, a so-called intermediate registration type, which completed the registration of transfer of ownership in the name of the title truster immediately from the seller pursuant to the trust agreement entered into with the title truster, is not the ownership of the real estate in the name of the title truster, and the
Since a nominal trustee cannot be deemed a person who keeps the property of a nominal truster, even if he/she arbitrarily disposes of the real estate entrusted to the nominal trustee, the crime of embezzlement is not established in relation to the nominal truster (see Supreme Court Decision 2014Do6992, May 19, 2016). (2) The reasoning of the lower judgment and the evidence duly adopted and examined by the lower court reveal the following facts.
(A) The defendant and the victim E, and D were located in the F Housing Redevelopment Development and Improvement Project Zone;
G.