(영문) 서울중앙지방법원 2018.12.19 2018노1906

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Reasons

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자간(%)

(영문) 서울중앙지방법원 2018.12.19 2018노1906

횡령

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All appeals by the Defendants are dismissed.

Reasons

1. Summary of grounds for appeal;

A. Defendant A1) The Defendant changed the priority claim deposit in the following case to the name of the Defendant, thereby keeping the deposited bonds in the name of the Defendant.

Since the defendant is the creditor of the above deposit claim, the withdrawal money is owned by the defendant, and it cannot be deemed that it is entrusted and kept by the D.

Therefore, the withdrawn money of this case does not constitute an object of embezzlement.

2) D was liable to compensate the Defendant for damages amounting to KRW 200 million, and the Defendant refused to return the withdrawn amount by implied declaration of intent to set off the obligation to refund the withdrawn amount and the obligation to compensate for the said damage amount on an equal basis.

Therefore, there is no intention of embezzlement.

3) The change of priority claim deposit after the instant case in the name of the Defendant was made in the financial transaction under the name of another person for the purpose of evading compulsory execution against the Defendant, and this is an act subject to criminal punishment under the Act on Real Name Financial Transactions and Confidentiality, and thus, is null and void as an anti-social legal act.

Therefore, since D does not have a right to the priority claim deposit after the instant case, D does not have a relationship of custody for the withdrawal.

B. Defendant B was a registered director in the name of having no intention to participate in all business management of Company E, and thus comprehensively consented in advance to use his name in the business performance of the said Company.

2. Determination

A. Determination on Defendant A’s grounds for appeal 1) The pre-payment of the amount that Defendant A received from a third party on behalf of the delegating person based on the act falls under the ownership of the delegating person at the same time as the entrusted money, barring any special circumstance, and the delegating person is in custody for the delegating person, and the delegated person is in custody for the delegating person.

must be viewed.

For the delegating person by virtue of his act.

참조조문

-금융실명거래 및 비밀보장에 관한 법률

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