[1] The relationship of attribution of money that a person entrusted with the affairs related to the receipt of money receives from a third party for the delegating person based on the act (=a delegating person)

[2] The case holding that the crime of embezzlement is established where the defendant had arbitrarily consumed the proceeds of sale against the purpose of the entrustment of custody, in case where the victim purchased the vehicle from the defendant and moved the vehicle into the company for intervention through the defendant, but the legal relationship problems arise, and the defendant disposed of it with the victim, and agreed to deliver it to the victim by finding another vehicle attached with the proceeds of the disposal

[1] The amount of money received by a person entrusted with administrative affairs involving the receipt of money from a third party for the delegating person based on the act is identical to the money that was received by the delegating person for the purpose and purpose of the act, and the person who belongs to the delegating person and received the money from the delegating person at the same time as the money was received, barring any special circumstances.

[2] The case holding that the crime of embezzlement is established where the defendant arbitrarily consumeds the proceeds from sale against the purpose of the entrustment of custody, in case where the victim purchased the vehicle from the defendant and moved the vehicle into the company for intervention through the defendant, but the legal relationship problems arise, and the defendant disposed of it with the victim, and agreed to transfer it to the victim by finding another vehicle attached with the proceeds from the disposal of it, and then

[1] Article 355 (1) of the Criminal Code / [2] Article 355 (1) of the Criminal Code

[1] Supreme Court Decision 95Do1923 delivered on November 24, 1995 (Gong1996Sang, 302), Supreme Court Decision 96Do106 delivered on June 14, 1996 (Gong1996Ha, 2277), Supreme Court Decision 96Do3155 delivered on March 28, 1997 (Gong197Sang, 12955), Supreme Court Decision 97Do3057 delivered on April 10, 1998 (Gong198Sang, 1399)

Defendant

Prosecutor

Seoul District Court Decision 2002No9490 Delivered on March 26, 2003

The part of the judgment below regarding embezzlement shall be reversed, and that part of the case shall be remanded to the Panel Division of Seoul District Court.

1. The summary of the facts charged of this case is as follows: around December 29, 199, the defendant sold a 76-gambur bus (hereinafter referred to as "the bus of this case") of 45 million won which was registered as the land owned by the defendant to the victim Kim Nam-nam, Yangcheon-si Co., Ltd. (hereinafter referred to as Yangcheon-si Co., Ltd.) around 7, 200; on January 7, 200, a transfer registration (registration number: 78-gambal. 8303) was made in the name of Dong branch tour Co., Ltd. (registration number: 78-g., : 700) in the name of Dong branch tour Co., Ltd. for the purpose of sale of the bus of this case; on April 15, 200, the defendant had the victim enter into a new bus of this case with the order of sale of the bus of this case 70-gambal 7, 2005.

In regard to this, the court below reversed the judgment of the first instance court on the ground that the above facts charged on the premise that the defendant is in the status of a person who keeps the above sales price for the victim Kim Nam is not a crime, since the vehicle generally incorporated into the company is attributed to the company where the ownership and the right to manage the land externally and externally. Thus, the defendant sold the bus of this case, which was entered in the name of Dongnam tour Co., Ltd., to the new household tour Co., Ltd. and received from the above company, and the sales price received from the above company belongs to the ownership of the above company, Dongnam Tourist Co., Ltd. at the same time at the same time, and the victim Kim Nam can enforce liability against the defendant or the company based on the civil obligation.

2. Money received by a delegated person of administrative affairs with the receipt of money from a third party for a delegating person based on the act is identical to money received by the delegating person for the purpose or purpose, barring any special circumstance, the delegated person shall be deemed to have the relationship of keeping the money for the mandator at the same time with the receipt, unless there are other special circumstances (see Supreme Court Decisions 95Do1923, Nov. 24, 1995; 96Do106, Jun. 14, 1996; 97Do3057, Apr. 10, 1998, etc.).

However, according to the facts charged and the records, when the legal relationship of the bus of this case, which was transferred to the victim Kim Nam and moved into the name of Dongnam travel company, occurs, the defendant found the bus of this case to be sold to another company and seized by another company with the victim with the right to dispose of the bus of this case, and requested the victim to sell the bus of this case to the victim and request the victim to sell the bus of this case by agreement to transfer it to another company instead of the bus of this case, and received the price. Thus, unless there are special circumstances such as the defendant's agreement to transfer it to the defendant, the defendant's receipt of the above purchase price is for the purpose of acquiring the right of the victim from the first time, and the amount of the sale price naturally belongs to the victim, and the defendant's custody relation for the victim. Thus, the crime of embezzlement is established if the defendant arbitrarily consumes the bus of this case against the purpose of the entrustment as seen earlier, and there is no reason to conclude that the bus of this case was registered as owned by the company for entry.

Nevertheless, the court below held that the defendant is not in the position of a person who keeps the above sales price solely on the ground as seen earlier, and held that the facts charged in this case did not constitute a crime. In so doing, there is no error of law by misapprehending the legal principles on the status of a custodian in embezzlement, which affected the conclusion of the judgment. The ground of appeal assigning this error

3. Therefore, without further proceeding to decide on the remaining grounds of appeal, the part of the lower judgment regarding the crime of embezzlement is reversed and the case is remanded to the lower court. It is so decided as per Disposition.

Justices Lee Yong-woo (Presiding Justice)