In case where the transferor of a claim receives money from the obligor by collecting the claim before the notice of transfer, whether ownership of the money belongs between the transferor and the transferee (=assignor) and whether the transferor is in the position of keeping the above money for the transferee (affirmative)

[Majority Opinion] The purpose of the assignment of claims is to treat the claims as one goods and transfer them to the assignee immediately without losing their identity. In such a case, the assignee obtains the status of obligee and obtains repayment of claims effective from the obligor. As the Civil Act requires notification of the transfer to the obligor or consent of the obligor as a requisite for setting up against the obligor and a third party, and grants only the transferor the right of notification to the obligor. As such, the transferor bears the duty to enable the assignee to satisfy the requisite for setting up against the obligor by either notifying the obligor of the transfer of claims or obtaining consent of the assignment of claims from the obligor, and if the assignee becomes unable to set up against the obligor by submitting such requirement for setting up against the assignee, such as notification of the transfer of claims to the obligor before the transferor notifies the assignee of the transfer of claims, the assignee is unable to achieve the objective of the transfer. Thus, the transferor’s obligation to collect claims is included in the transferor’s obligation to dispose of claims before the transferor’s transfer of claims, and as such, it can be viewed that the transferor’s obligation to preserve the assignee’s obligation to be effective and effective.

[Dissenting Opinion] The debtor is deemed to have delivered money to his creditor (the transferor) with the intent to repay the money, and the creditor is deemed to have received money by himself as the intention to acquire it (the creditor's receipt without the notification of the assignment of claim goes against the trust and good faith). In such a case, the ownership of money given by the debtor as the repayment of the obligation belongs to the creditor. In such a case, there is no legal ground to deem that the money given by the debtor belongs to the assignee's ownership between the transferor of the obligation and the transferee of the claim. Even if the money in custody of the property can be established in accordance with the principle of trust and good faith, the ownership of the property shall belong to the civil law and the criminal law does not change the theory, and in case where the debtor delivers money as the repayment of the obligation between the transferor of the obligation and the transferee of the obligation, barring special circumstances such as the special agreement that the transferor belongs to the assignee of the obligation, and there is no obligation that the transferor should transfer the money received by the obligor to the assignee or handle it in accordance with the direction of the transferee.

[Supplementary opinion] According to the Civil Act theory, since money is owned in a place where it is occupied except where it is specific, such as sealed cases, and if it is applied as it is to embezzlement, it is unnecessary to establish the crime of embezzlement except for the case where it is entrusted as a specific property. Such theory of the Civil Act not only needs to recognize a right to request a return of real right with respect to money which is highly substitute, but also has its purpose to protect the dynamic safety under the premise that money is distributed before it is distributed as an exchange means. Thus, it is not reasonable to discuss the ownership of money within the context of embezzlement for the purpose of protecting the periodic safety of the owner of property, i.e., the owner of the property between the parties in a fiduciary relationship, and the parties who own money can keep or use the money for the benefit of the other party, and it is also necessary to establish the legal concept of embezzlement as if it is not sufficient to protect the other party in accordance with the principle of trust and good faith as well as to establish the ownership of the money which is actually entrusted by the transferee.

Article 355(1) of the Criminal Act

Supreme Court Decision 83Do1212 delivered on June 28, 1983 (Gong1983, 1164 delivered on September 10, 1985) Supreme Court Decision 86Do1946 delivered on May 26, 1987 (Gong1987, 1105) Supreme Court Decision 87Do1778 delivered on October 13, 1987 (Gong1987, 1751 delivered on September 14, 197), Supreme Court Decision 93Do1578 delivered on August 24, 1993 (Gong1993Ha, 268 delivered on September 24, 196), Supreme Court Decision 94Do465 delivered on September 19, 194 (Gong1993Ha, 2681 delivered on September 19, 196)

A

Prosecutor

Seoul District Court Decision 96No7892 delivered on February 5, 1997

The judgment of the court below is reversed, and the case is remanded to the Seoul District Court Panel Division.

We examine the grounds of appeal.

1. On April 1, 1995, the court below rendered the judgment of the court below that on April 20, 1995, the defendant was not guilty on the ground that the defendant transferred his claim for return of KRW 11,50,000,000 to the victim and did not notify C of the assignment of the claim while he received KRW 25,00,000,000 which was returned by C in the Guro-gu Seoul Metropolitan EF doublebro, and transferred the claim for return to the victim, and embezzled it to the non-indicted Ga at that place without returning it to the victim in order to repay the debt of KRW 11,50,00,000,000,000,000, which was 1,500,000,000,000,000 which was already owned by the victim by the defendant to the non-indicted Ga on the ground that the transferee of the claim and the transferee of the claim were not in the status of the victim.

The purpose of the assignment of claims is to treat claims as a kind of goods and transfer them to the assignee immediately from the transferor without losing their identity. In this case, the assignee acquires the creditor's status and is to obtain repayment of claims effective from the obligor. The Civil Act of the Republic of Korea requires notification of the transfer to the obligor and the consent of the obligor as a requisite for setting up against the obligor and a third party, and grants the obligor the right of notification to the obligor only to the transferor. As such, the transferor bears the obligation to enable the assignee to satisfy the requisite for setting up against the obligor by notifying the obligor of the assignment of claims or obtaining the consent of the obligor. Furthermore, if the assignee cannot set up against the obligor by submitting the requisite for setting up against the obligor by double transferring the claims to other parties before the transferor notifies the assignment of claims, the assignee cannot achieve its purpose. Thus, the transferor's obligation to collect the claims by failing to do so naturally includes the obligation to enable the assignee to collect the claims smoothly.

The affirmative and passive obligation of the transferor is to preserve the claim that has already been reverted to the transferee, and the preservation of the claim is only attributable to the intention of the transferor. Thus, the transferor can be regarded as a person who deals with the affairs concerning the preservation of the claim for the transferee on behalf of the transferee. Therefore, the parties to the assignment of claim should be viewed as the premise of a fiduciary relationship that the transferee can collect the claim effectively through the process of the transferor's affairs.

Furthermore, as in the instant case, if the transferor received money from the obligor before the transferor notifies the transferor of the assignment of the claim, unless the obligor does not meet the requisite for counterclaim, the repayment made by the obligor to the transferor is valid, and as a result, the obligation attributed to the assignee is extinguished, but it is received as repayment for the obligation reverted to the assignee who does not have any authority to transfer the claim. As a natural conclusion of the assignment of claim, it is impossible to receive the money in order to transfer it to the assignee, and it is only possible to receive the money only to deliver it to the assignee. Accordingly, the money received by the transferor belongs to the ownership of the assignee between the transferor and the transferee, and the transferor is in the position of the transferor to handle the affairs related to the preservation of the claim on behalf of the transferee.

Therefore, the defendant's act of disposing of the lease deposit amount of KRW 25 million, which he received from C before giving notice of the transfer of claim, belongs to the ownership of the victim who is the transferee, and the defendant is the person who keeps the lease on behalf of the victim and disposes of it without returning it to the victim constitutes embezzlement.

Nevertheless, the court below erred by misapprehending the legal principles as to the crime of embezzlement, which held that the principal facts charged did not constitute embezzlement on the grounds as stated in its reasoning. The ground of appeal pointing this out is with merit.

Therefore, without further proceeding to decide on the remainder of the grounds of appeal, the judgment of the court below is reversed, and the case is remanded to the court below. It is so decided as per Disposition by the assent of all participating Justices, except there is a concurring opinion by Justice Jeong-ho, Justice Kim Jong-sik, Justice Shin Sung-sung, Justice Lee Yong-sik, Justice Lee Jin-hun, and Justice Song Jin-hun with the Majority Opinion.

2. Dissenting Opinion by Justice Cho Jong-ho, Justice Kim Jong-sik, Justice Shin Sung-sung, Justice Lee Yong-hun, and Justice Lee Jae-sik is as follows.

A. The crime of embezzlement is established when the person who keeps the property owned by another person embezzled or refuses to return the property. Therefore, for the establishment of embezzlement, the requirement that the perpetrator is in the status of custody of the property owned by another person should be satisfied.

B. However, in the case of this case, the defendant is not in the position of keeping "other's property".

In this case, the obligor is deemed to have delivered money to his creditor (the transferor) with the intent to repay the money, and the obligee is deemed to have received it as the intention to acquire it (the obligee’s receipt without notifying the assignment of claim goes against the good faith), and the ownership of the money given by the obligor to the obligee as the repayment of the obligation belongs to the obligee. In such a case, there is no legal basis to deem that the money given by the obligor to the obligee belongs to the obligee’s ownership between the transferor and the assignee of the obligation. Even if the ownership of the property can be established in accordance with the good faith principle or sound reasoning, the ownership of the property should be attributed to the civil law, and the criminal law does not change its theory.

In addition, in cases where an obligor delivers money as a repayment of obligation between the transferor of credit and the transferee of credit to the transferor of credit, barring special circumstances such as a special agreement to assign such money to the transferee of credit, barring any ground to deem that the transferor of credit has a duty to transfer the money delivered from the obligor to the transferee of the credit or to handle such money in accordance with the direction of the transferee of the credit, the transferor of credit cannot be deemed to have a position to keep the

C. Therefore, solely on the ground that the transferor has a civil obligation to satisfy the requisite for setting up against the obligor, such as notification of the transfer of claims, etc., it is deemed that the money that the transferor of claims received from the obligor belongs to the ownership of the assignee of the claim without any clear legal basis, and that the transferor of claims has the relationship of keeping it, thereby recognizing the elements of embezzlement is in violation of the principle of legality.

In addition, if the transferor of a claim seeks to punish the act of arbitrarily disposing of the money delivered by the obligor on the ground that it is a highly bruptive act, it does not directly undermine the function of guaranteeing the freedom of criminal law. It does not constitute criminal punishment, but does not constitute the elements of a crime among the act of good faith, even though it is highly unconstitutional, it cannot be punished without permission even if it does not constitute the elements of a crime.

D. Nevertheless, I think that there is no precedent that has been punished until now, it is not right to punish the transferor of a claim for the above act in a new manner. In addition, if the legal principles are unclear, I think it is reasonable to follow the principle that "in favor of the defendant" is favorable to the defendant.

3. Concurrence with the Majority by Justice Song Jin-hun as follows.

The minority opinion argues that, unless there is an agreement between the transferor and the transferee of the claim to keep the money received from the obligor for the transferee, the transferor’s ownership of the money that the transferor received as a repayment of obligation belongs to the transferor, and therefore, the transferor is not in the position of keeping the money for the transferee.

Since embezzlement is established when the property of another person is illegally acquired, the property subject to embezzlement is based on the premise that the ownership of the property belongs to another person.

According to the theory of the Civil Act, in particular, money has ownership in a place where it is possessed except where it is specific, such as sealed cases. Accordingly, if this is applied as it is in the crime of embezzlement, it would be unnecessary to recognize the right to claim a return of real rights against money with high-level alternative nature. However, such theory of the Civil Act not only needs to recognize the right to claim a return of real rights, but also is aimed at protecting the dynamic safety on the premise that money is distributed before it is distributed as a means of exchange. Therefore, it cannot be said that it is reasonable to discuss the ownership of money in the crime of embezzlement for the purpose of protecting the right to claim a return of real rights between the parties in a fiduciary relationship.

In a case where one party, who possesses a certain amount of money, can keep or use it for the benefit of the other party in light of the purpose of a fiduciary relationship or a fiduciary relationship between the parties, and can be deemed that free disposition by the possessor is prohibited, the possessor does not reside in protecting the other party in accordance with a claim and obligation under the Civil Act, and in realizing the money of the same value that can be substituted therefor for the benefit of the other party, and protecting such status under the Criminal Act, it is necessary to recognize the concept of ownership under the Civil Act different from ownership under the Civil Act. The Supreme Court precedents consistent with the Supreme Court precedents, have used the money voluntarily without following the purpose of use (see, e.g., Supreme Court Decisions 86Do1946, May 26, 1987; 94Do462, Sept. 9, 199; 94Do2076, Oct. 12, 1995; 196Do3196, Apr. 196, 196).

The minority opinion appears to the effect that the transferor’s ownership of money belongs to the transferor as long as the transferor receives it with the intention of arbitrarily disposing of it, and that the ownership of money belongs to the transferor. However, the transferor received money with the intention of arbitrarily disposing of it is merely an illegal motive in its receipt, and it does not mean that it affects the disposition authority of money received by the transferor.

In addition, "the custody of goods" in embezzlement means the actual or legal control over the goods, and the custody of the goods must be based on the consignment relationship, but as long as it does not require that the goods be established by a contract such as loan of use, lease, delegation, etc., it may be established by administrative management, customs, cooking, and good faith (see, e.g., Supreme Court Decisions 87Do1778, Oct. 13, 1987; 96Do410, May 14, 1996). Even if there is no special agreement that the transferor establishes a consignment relationship with the parties after the collection of the money that the transferor collected from the debtor before giving notice of the assignment of the obligation, the transferor is in a position to manage the affairs related to the preservation of the claim for the transferee, and as long as the money was received with the repayment of the claim reverted to the transferee, it shall be deemed that the transferor is in the position of the transferor or transferee to receive the money by way of the transfer of the claim.

According to the minority opinion, the majority opinion does not correspond to the elements of crime, but it is against the principle of no punishment without the law because it is punished for the reason that it is an act of good faith with a large amount of punishment. However, since the concept of "storage" in the "person who keeps another's property," which is the elements of crime of embezzlement under the Criminal Act, includes a normative meaning, it cannot be applied to a specific case only through the supplementary interpretation of the judge, it cannot be viewed that interpreting the concept of "storage" in the crime of embezzlement as above exceeds the objective limit of the meaning of the crime of no punishment without the law.

Chief Justice Park Jong-ho (Presiding Justice) and Lee Jong-ho (Presiding Justice) Lee Jin-ho (Presiding Justice)