[1] In a case where a real estate sales contract was concluded between the owner who was the party and was unaware of the fact that the title trust agreement was made by contract title trust prior to the enforcement of the Act on the Registration of Real Estate under Actual Titleholder’s Name and the owner who was unaware of the fact that the title trust agreement was made, and the registration of ownership transfer was made under the name of the trustee, and the actual name registration was not made within one year grace period after the enforcement of the said Act, whether the trustee

[2] The case reversing the judgment of conviction on the ground that there is room for the application of the legal principles on contract title trust in case where a church pastor completed the registration of ownership transfer under his name with respect to the real estate purchased with the donation of the church credit mainly, and completed the registration of ownership transfer for his own debt security at his own discretion

[1] Article 35(1) of the Criminal Act; Articles 2, 4, 11, and 12 of the Act on the Registration of Real Estate under Actual Titleholder’s Name / [2] Article 355(1) of the Criminal Act; Articles 2, 4, 11, and 12 of the Act on the Registration of Real Estate under Actual Titleholder’s Name

[1] Supreme Court Decision 98Do4347 delivered on March 24, 2000 (Gong2000Sang, 1101)

Defendant

Defendant

Daejeon District Court Decision 2005No1646 Decided December 2, 2005

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

We examine the grounds of appeal.

1. The court below found the defendant guilty as to the charges of this case, "The real estate of this case was purchased through the contribution of the (name omitted of the church), such as the faith of the church, which the defendant had been employed as a pastor, and was owned jointly by the church believers." On July 29, 1992, while the defendant completed the registration of ownership transfer on the real estate of this case, which is the collective ownership of the victim church believers, and was kept for victims on or around February 16, 2004, the court below found the defendant guilty as to the charges of this case, which stated that "The defendant, on or around February 16, 2004, had registered the establishment of a mortgage over 50 million won with the maximum debt amount, and embezzled it."

2. Examining the evidence adopted by the court below in light of the records, we affirm the judgment of the court below that the real estate of this case was mainly purchased with the contribution of the above church, etc., and there is no violation of the rules of evidence against the rules of evidence.

3. However, according to the records, the real estate of this case was originally registered and owned by Nonindicted 2 in its name; the defendant entered into a sales contract with Nonindicted 2 on November 11, 191 with the defendant as the purchaser; and completed the registration of ownership transfer on July 29, 1992; the real estate of this case was not registered in the name of the defendant; and the real estate of this case was purchased in the name of the above (name omitted) church or its believers with the above (name omitted) church or its believers. Under this factual basis, if the real estate of this case was purchased in the (name omitted) church as of the court below, and it can be deemed that its trust belongs to the collective ownership of the believers, it should be presumed that the above church was established with the defendant's name, and it was transferred the registration of ownership transfer under the name of the defendant, namely, the above church and the defendant, and the so-called contract title trust relationship between the defendant.

However, according to the provisions of Articles 2, 4, 11, and 12 of the Act on the Registration of Real Estate under Actual Titleholder’s Name, in cases where, prior to the enforcement of the above Act, a contract for the sale of real estate was concluded between the owner who became a party and the owner who was unaware of the fact that the title trust agreement was made, and the registration of ownership transfer was made in the name of the trustee pursuant to the above contract, and where the real estate was not made within one year grace period after the enforcement of the above Act, the change in real rights by the registration of ownership transfer is valid, but since the title trust agreement between the truster and the trustee is null and void, the trustee shall be deemed to have acquired the ownership of the relevant real estate effectively not only in relation to the seller who is the former owner, but also in relation to the truster, and therefore the trustee shall not be deemed to be a person who keeps another’s property (see Supreme Court Decision 98Do4347,

According to the records, Nonindicted 2, the former owner, was aware that he intended to use the instant real estate in the buyer’s side at the time of the conclusion of the above sales contract, but further, it appears that he did not know how the Defendant became the purchaser or what relationship the Defendant and the Defendant (contestation omitted), etc., so there is room for applying the legal principles on the title trust of a contract as mentioned above in the instant case.

Nevertheless, the court below decided that the defendant was the custodian of the real estate of this case and found him guilty of the facts charged of this case, without examining what relationship between the defendant and the above church correspondence surrounding the ownership of the real estate of this case is. The court below erred by misapprehending the facts or by misapprehending the legal principles on embezzlement, which affected the conclusion of the judgment. The ground of appeal containing this purport is with merit.

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

Justices Park Si-hwan (Presiding Justice)