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The judgment of the court below is reversed.
A defendant shall be punished by imprisonment for four months.
Reasons
1. The gist of the grounds of appeal is that the instant contract for sale in lots is not null and void, and the fiduciary relationship between the Defendant and the victim is worth protecting the crime of embezzlement. In such a case, even if the deposit is deposited in the name of the Defendant, it shall be deemed that it belongs to the victim’s ownership. Thus,
2. Determination
A. The factual basis of the instant case is as follows: (a) the part of the lower judgment’s respective “B” in paragraphs (1) and (2) is deemed to be K; and (b) the part of the latter part of paragraphs (1) is deemed to have been consumed and embezzled. In addition to the modification to “consumption,” the part of the lower judgment’s judgment in paragraphs (1) and (2) 4 through 20.
B. (1) The subject of embezzlement under Article 355(1) of the Criminal Act, which is the Supreme Court en banc Decision 2017Do17494 Decided July 19, 2018, refers to the person who takes the custody of another’s property. Here, the custody refers to the possession of the property by the consignment relationship, and thus there is a consignment relationship between the custodian of the property and the owner of the property (or the other principal owner) to establish the crime of embezzlement.
Such entrustment relationship is sufficient if it is de facto, and there is no need for the defendant to be a party to a civil contract.
In general, the consignment relationship takes place by a contract such as loan for use, lease, delegation, or deposit, but it may arise according to the provisions of the law such as office management, custom or cooking, or the principle of good faith.
(see, e.g., Supreme Court Decisions 84Do2644, Sept. 10, 1985; 2003Do2077, Jul. 11, 2003). However, in light of the fact that the intrinsic nature of embezzlement unlawfully acquires another’s property entrusted, the consignment relationship is limited to that which is worth protecting the crime of embezzlement (see, e.g., Supreme Court en banc Decision 2014Do692, May 19, 2016).