Whether embezzlement is established where a secured party of movable property refuses or disposes of the collateral beyond the scope of the secured right (affirmative)

A secured party who has received a movable from an obligor as security can exercise his/her security right within the scope of his/her security right by lending money to the obligor, and the secured party's intent is to deny the relationship of loan for consumption and establishment of security with the secured party other than the actual secured debt, and the secured party's existing credit is provided by loan for consumption and establishment of security contract between himself/herself and a third party, and the secured party's existing credit is also included in the secured debt, and the existing credit against a third party, other than the actual secured debt, is not returned if repayment is not made including the secured debt, but the secured party sells or provides the secured debt to another person as security, and the secured debt is also appropriated for other than the secured debt, it cannot be deemed the exercise of the legitimate security right, and in violation of the purpose of the entrustment, it is recognized as an intention of unlawful acquisition.

Article 355(1) of the Criminal Act

Defendant 1 and two others

Prosecutor

Law Firm Shin, Attorney Song-chul et al.

Seoul Central District Court Decision 2005No373 Decided September 22, 2005

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

The grounds of appeal are examined.

1. As to the violation of the rules of evidence regarding whether to sell the collateral of this case

The allegation in the grounds of appeal on this part is based on the evidence that the court below's failure to recognize it was against the rules of evidence even though the defendants conspired to sell the Dog itself, which is the collateral for the defendant 1's loan claim against the non-indicted 1, to the non-indicted 2.

However, examining the reasoning of the judgment below in light of the records, it is clear that the court below did not recognize Defendant 1, etc. as unlawful acquisition intention on the ground that the Defendants conspired to sell the instant intent, which is collateral, to a third party (the principal charge), and offered as collateral (the preliminary charge) merely because it is merely an exercise of a security right or a transfer of a security right.

Therefore, this part of the ground of appeal is rejected as it is irrelevant to the judgment of the court below.

2. As to the misapprehension of legal principles as to the intent to illegally acquire embezzlement

For embezzlement to be established, a person who keeps another’s property should either embezzled or refuse to return the property with the intention of unlawful acquisition. Here, the intent of unlawful acquisition refers to the intention of a person who keeps another’s property to dispose of the property without authority for his own or a third party’s own interest, contrary to the purport of entrustment. When the intent of unlawful acquisition is definitely expressed outside, embezzlement is established (see Supreme Court Decisions 80Do537, Apr. 13, 1982; 89Do382, Sept. 12, 1989; 2001Do5439, Feb. 5, 2002).

On the other hand, a secured party who received a movable from an obligor as security can exercise his/her security interest within the scope of the security interest. On the other hand, the secured party's intent is to deny a loan for consumption and establishment of security among the secured party in addition to the actual secured debt, and to deny a loan for consumption and establishment of security between the secured party and the secured party, which was provided pursuant to a loan for consumption and establishment of security contract between the debtor and the third party, and the existing claim against a third party in addition to the actual secured debt is also included in the secured debt, and it is alleged that the secured party does not return if the secured debt is not repaid, but the secured debt is sold or provided as security, and the secured debt is not repaid to the third party. It cannot be deemed as the exercise of the legitimate security interest if the secured party sells the secured debt to the third party, or provides it as security, and it is recognized as an intention of unlawful acquisition.

According to the facts acknowledged by the court below, around November 1, 2002, Defendant 1 was introduced by Defendant 3, and the act of Defendant 1 lent KRW 10 million to Nonindicted 1 as security of his own Cheongsung electronic document (hereinafter “the instant Dog Party”) from his own possession for three days, and upon the expiration of the payment period, Defendant 1 was in custody of the instant Dog Party, used Nonindicted 1’s own debt amounting to KRW 10 million as well as KRW 20 million with Defendant 3’s existing debt amounting to KRW 00,000,000 with Defendant 1’s own debt amounting to KRW 10,000,000,000 from KRW 7,000,000,000 to KRW 30,000,000 and KRW 100,000,000,000,000 to KRW 10,000,00,000).

Nevertheless, the court below held that even if Defendant 1 was provided as security for Nonindicted Party 1’s obligation of KRW 10,000,000 as well as Defendant 3’s existing obligation with knowledge that Defendant 3 did not secure the existing obligation, it is merely an exercise of the right as a security right holder by exercising a security right or transferring a security right, and that Defendant 2 and Defendant 3’s intent to acquire illegal property cannot be recognized, without examining whether Defendant 2 and Defendant 3 conspired to sell or sell (principal facts charged) the instant intentional principal of this case as collateral to a third party, and embezzlement (preliminary facts charged) as security, and thereby adversely affecting the conclusion of the judgment by misapprehending the legal principles on the intent to acquire illegal property in the crime of embezzlement. The prosecutor’s ground of appeal pointing this out is with merit.

3. Conclusion

Therefore, the judgment of the court below is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices.

Justices Lee Hong-hoon (Presiding Justice)