Consumption and embezzlement of fraternity money entrusted for use;

If a person entrusted with a donation of money consumess the money for his own purpose without delivering it to the truster, the crime of breach of trust can not be viewed as embezzlement, i.e., whether it can be established.

Articles 402, 644, and 646 of the Civil Act; Article 355 (2) of the Criminal Act

Prosecutor

The Gwangju metropolitan area, the second-class Gwangju metropolitan area, etc.

(1) According to the grounds of appeal, even if Non-Indicted 1 was the director of Seoul around April 1954, it was delegated by Non-Indicted 1 to the defendant for the use of the fraternity. However, since the failure of the fraternity around October of the same year, Non-Indicted 1 entrusted the collection of the debt to the defendant within a prompt time as the defendant non-Indicted 2 as well as the defendant, the delegation of Paragraph 1 is extinguished by the delegation of Paragraph 2, and therefore, if the defendant received the money from Non-Indicted 2, the ownership is specified and the ownership is transferred to Non-Indicted 1, who is the delegating of Non-Indicted 2, and it is reasonable to interpret that the above part of the money was returned to the non-Indicted 2, which is the first instance court's first instance judgment to the effect that the non-Indicted 1 was not the delivery of the money, and it is reasonable to interpret that the above part of the money was returned to the non-indicted 2, who is the non-indicted 4, as the principal of the contract.

However, according to the nature of delegation in accordance with the Civil Act, the delegated person has a duty to manage the affairs as a good manager (see Article 64 of the Civil Act) and Article 355 (2) of the Criminal Act, as so-called "a person who administers another's affairs in violation of his/her duty and has enacted that the act of monetary consumption shall be punished as a crime of breach of trust in the event he/she causes damage to the principal, and thus, the act of monetary consumption by the defendant shall not be completely exempted from the liability for the crime of breach of trust. However, according to the records recorded in this case, the prosecutor has kept the case consistently since he/she was indicted by embezzlement in accordance with Article 355 (1) of the Criminal Act, since he/she had consistently maintained this case from this case to this case, and the court below has changed the facts charged and applicable provisions to the final appeal. Accordingly, the court below's decision is justified.

Justices Kim Jong-soo (Presiding Justice)