If the trustee voluntarily disposes of farmland after the farmland truster becomes unable to obtain the certification of sale and purchase of farmland (affirmative)

Since a person eligible to purchase farmland under the former Farmland Reform Act (repealed by Act No. 4817, Dec. 22, 1994) limited to a person who is or intends to be a farmer, where the trustee is unable to purchase the farmland under the above Act even in cases of title trust of farmland, the title trust becomes null and void if the trustee is unable to purchase the farmland under the above Act. However, even if the trustee is legally entitled to purchase the farmland, even if he/she was unable to obtain a certificate of farmland purchase and sale at that time, so he/she could cancel the title trust and seek a return of the farmland if he/she could not purchase the farmland after being issued a certificate of farmland sale, so the trustee will be in the position of the person in charge of the farmland on behalf of the truster, and no other legal act exists between the truster and the trustee.

Article 355(1) of the Criminal Act; Article 19(2) of the former Farmland Reform Act (repealed by Act No. 4817, Dec. 22, 1994)

Supreme Court Decision 81Do2936 delivered on February 9, 1982 (Gong1982, 357) Supreme Court Decision 91Do1397 delivered on October 22, 1991 (Gong1991, 2868) Supreme Court Decision 91Da34127 delivered on April 10, 1992 (Gong192, 1534)

Defendant

Prosecutor

Changwon District Court Decision 96No1489 delivered on November 19, 1997

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

1. The summary of the facts charged of this case is as follows: on September 30, 1988, the remaining FFFFF purchased the farmland of this case, but it is impossible to obtain the certificate of farmland sale because it did not reside at the seat of the farmland, and entered into a title trust contract with the defendant living in the seat of the farmland where it is impossible to obtain the certificate of farmland sale, and completed the registration of ownership transfer in the name of the defendant, and the defendant was granted a loan of 30 million won from the GaFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFF, and embezzled the right to collateral security at his discretion, and the court below rejected the judgment of the court below that the defendant was not guilty on the ground that the remaining FFFFF would not have the status of a person who has the ownership of the farmland of this case for South FFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFF, and thus could have been found the new farmland.

2. However, since a person eligible to purchase farmland under the former Farmland Reform Act (repealed by Act No. 4817 of Dec. 22, 1994) limited to either a farmer or a person intending to be a farm, if a trustee is unable to purchase the farmland under the above Act even in the case of a title trust of farmland, the title trust becomes null and void. However, if the trustee is legally entitled to purchase the farmland, even if the truster was unable to obtain a certificate of farmland purchase and sale as at the time it was impossible for the truster to purchase the farmland, if he/she could cancel the title trust and seek a return of the farmland (see Supreme Court Decision 91Da34127, Apr. 10, 1992). After that, the trustee is in the position of the custodian of the farmland for the truster. It does not change because there was no separate legal act between the truster and the trustee.

In this case, if, at the time of purchase of the farmland in this case and title trust with the defendant, the defendant legally completed the registration of ownership transfer with the issuance of a farmland sale certificate, and even if the remaining goldline was not a farmer at that time, the certificate of farmland sale can be issued and thus the defendant can seek the return of the farmland in this case, then the defendant is in the position of the custodian of the farmland in this case for the remaining gold line.

The lower court’s judgment is erroneous in the misapprehension of legal principles as to the custodian’s status in embezzlement, thereby adversely affecting the conclusion of the judgment. Therefore, the grounds of appeal assigning this error are with merit.

3. Therefore, the judgment of the court below shall be reversed, and the case shall be remanded to the court below. It is so decided as per Disposition.

Justices Lee Don-hee (Presiding Justice)