(영문) 대법원 2015.4.23. 선고 2014도696 판결

1. The interpretation of a declaration of intent is clearly binding the objective meaning that the parties gave to the act of expressing intent. When interpretation of the parties is at issue, it shall be reasonably interpreted in accordance with logical and empirical rules by comprehensively examining the contents of the declaration of intent, the motive and background leading up to the declaration of intent, the purpose to be achieved by the declaration of intent, the parties’ genuine intent, etc. (see, e.g., Supreme Court Decisions 2000Da27923, Oct. 6, 2000; 2004Da6065, May 27, 2005).

In light of the above, where the contractor agreed to supply and construct the materials and set the contract price including the cost of the materials, even if the contractor subsequently purchased and supplied the necessary materials to the contractor, if the contractor deducteds the price from the contract price set by the contractor and the contractor, it is reasonable to view that the materials are owned by the contractor, as in the first contract, since it is interpreted that the contractor supplied the materials with the cost borne by the contractor, as in fact, as in the first contract.

In addition, theft under the Criminal Act refers to the removal of possession of a person other than himself/herself from possession against the will of the possessor, and the removal to his/her own or a third party. Thus, even if the contractor collected and disposed of the materials supplied at his/her own expense after the completion of construction work, it cannot be said that the object owned by a person other than himself/herself was stolen.

2. Comprehensively taking account of the reasoning of the first instance judgment and the lower judgment as well as the evidence duly admitted, the following facts can be revealed.

A. On October 28, 2009, Q Co., Ltd. (hereinafter “ Q”) ordered the Defendant to contract the primary structural frame of the 175,500,000 construction cost out of the 'C’ construction work under the guarantee of C Co., Ltd. (hereinafter “C”), which is the owner of the building, for the first structural frame among the new construction work of the 'C’ attached F, for the Defendant. However, Q agreed to supply all the remainder of the construction work, excluding the steel industry that Q supplied and the ready-mixed material.

B. On December 30, 2009, C, the owner of the building, ordered the Defendant to contract for the second structural frame of KRW 157,00,000 among the construction works for the said new construction works. However, C, the owner of the building, agreed to supply all the materials except steel bars and ready-mixed materials to be supplied by C to the Defendant to perform the said new construction works. Around February 2010, Q renounced waived the said new construction works, and H Co., Ltd (hereinafter “H”) succeeded Q to Q to the said new construction works, and subsequently changed to H on March 4, 2010.

D. Meanwhile, the Defendant ordered L to place a fry house made of the plate and each item of the instant item, and L was directly paid the said price by Q or H on September 1, 2009, with Q as KRW 16,496,295 won on September 3, 2009, KRW 36,495 won on October 3, 2009, KRW 3,428,040 on October 3, 2009, and KRW 8,030,000 on February 18, 2010.

E. Around December 2009, the Defendant completed the primary structural construction. C and Q agreed upon to the Defendant and completed the settlement with the Defendant by paying the remainder of the construction cost after deducting the material cost, equipment cost, food expenses, etc., including the aforementioned timber cost directly paid from KRW 175,50,000, which was the first structural construction cost agreed upon by Q.

F. Around April 2010, the Defendant completed the secondary framework construction. C and H paid the Defendant the remainder of the construction cost after deducting the material cost, equipment cost, food expenses, etc., including the aforementioned timber cost directly paid by H from KRW 157,00,000, which was agreed upon by the Defendant.

G. The Defendant used the above timber as a garry for the first and second structural construction. On April 2010, the Defendant: (a) assembled and sold any of the materials (hereinafter “the instant wood”) generated from the dismantled garment which was loaded in the dry field near the construction site; and (b) assembled and sold it to the Defendant. (c) Examining these facts in light of the legal principles as seen earlier, each of the above structural construction contracts entered into between Q or C entered into between the Defendant and Q or H to supply the materials and construct the said materials; (d) even if Q or H purchased the timber from L, the Defendant, who is the contractor, transferred the above timber to Q or H to the Defendant, and the contractor, provided that the purchase price for each of the above structural construction contracts entered into between Q or H to the remainder of the Defendant, including the price for each of the instant construction works, was deducted from the price for each of the instant wooden construction works, and that the ownership of each of the said materials was transferred to the Defendant at the expense of each of the instant construction works.

Therefore, even if the Defendant sold the instant timber generated from a dismantled house at the construction site of this case to 0 on April 201, 2010 after completing the first and second structural construction, it cannot be deemed as theft because it disposed of the timber owned by the Defendant.

4. Nevertheless, the court below held that the ownership of the timber of this case was stolen by disposing of it against the Defendant without permission, and it was justified in the first instance judgment that recognized it as larceny.

Therefore, such judgment of the court below is erroneous in the misapprehension of legal principles as to the interpretation of expression of intention, the contractor’s agreement to supply materials and the attribution of ownership of materials supplied by the contractor, or by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules, thereby affecting the conclusion of the judgment. The ground of appeal assigning this error is with merit.

5. Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.