[1] Whether embezzlement is established in a case where the trustee arbitrarily disposes of the trust real estate in the so-called “third party title trust” or “intermediate registration-type title trust” (affirmative)

[2] In a case where, at the time of farmland title trust, a truster could not obtain a certificate of farmland sale, but later, a truster could cancel the title trust and seek the return thereof due to changes in circumstances, whether the trustee can be deemed to be “the custodian” of the farmland as the subject of embezzlement from the point of time (affirmative)

[3] Whether the certification of qualification for acquisition of farmland under the Farmland Act is a requisite for the effective act which constitutes the cause of acquisition of farmland (negative)

[1] Article 35(1) of the Criminal Act; Articles 2, 3(1), and 4(1) and (2) of the Act on the Registration of Real Estate under Actual Titleholder’s Name / [2] Article 355(1) of the Criminal Act; Article 19 of the former Farmland Reform Act (repealed by Article 2 subparag. 1 of the Addenda to the Farmland Act (Act No. 4817 of Dec. 22, 1994); Article 8(1) of the Farmland Act / [3] Article 8(1) of the Farmland Act

[1] Supreme Court Decision 2000Do3463 decided Nov. 27, 2001 (Gong2002Sang, 220), Supreme Court Decision 2002Do619 decided May 16, 2003 / [2] Supreme Court Decision 97Do3283 decided Jul. 28, 1998 (Gong1998Ha, 2349) / [3] Supreme Court Decision 97Da49251 decided Feb. 27, 1998 (Gong198Sang, 897) (Gong2006Da59871 decided Jan. 27, 2006)

A

Defendant

Daegu District Court Decision 2007No3513 Decided January 18, 2008

The appeal is dismissed.

The grounds of appeal are examined.

Where a person who purchased real estate, without completing the registration of ownership transfer under his/her name, has immediately completed the registration of ownership transfer with a third party omitted from the seller pursuant to a title trust agreement entered into with a third party, if the third party disposes of the real estate trusted under his/her name at his/her discretion, embezzlement against the truster is established (see Supreme Court Decision 2000Do3463, Nov. 27, 2001).

According to the reasoning of the judgment below, the court below affirmed the first instance judgment convicting the victim of the crime of embezzlement on the ground that, after compiling the adopted evidence, the victim purchased the instant real estate from B with B, concluded a title trust agreement with the defendant who acquired B’s share in B, and completed the registration of ownership transfer concerning the whole of the said real estate in the name of the defendant, if the defendant and the victim constitute so-called “three-party title trust” or “intermediate registration title trust”, and if the defendant arbitrarily disposed of the victim’s share in the instant real estate trusted in

In light of the above legal principles and records, the judgment of the court below is just, and there is no error in the misapprehension of legal principles as to the subject of title trust and embezzlement.

Furthermore, since a person eligible to purchase farmland under the former Farmland Reform Act (amended by Act No. 4817 of Dec. 22, 1994; hereinafter “former Farmland Reform Act”) limited to a farmer or a person who intends to be a farmer, and even in case of title trust of farmland, if the trustee is unable to purchase the farmland under the former Farmland Reform Act, the title trust becomes null and void. However, even if the trustee could not legally purchase the farmland at the time of title trust, even if the truster could not have been issued a certificate of farmland purchase, and thus, he could not purchase the said farmland at the time of the title trust, so long as the truster could cancel the title trust on the said farmland and seek its return, the truster did not have the status of the person in charge of farmland on behalf of the truster, and the trustee did not seek a return of the farmland under the name of the truster and the trustee on behalf of the title trust (see, e.g., Supreme Court Decision 200Da38788, Jul. 28, 198).

According to the reasoning of the judgment below, the court below held that since the former Farmland Reform Act was repealed at the time when the defendant disposes of the instant real estate, which is farmland, and the Farmland Act was enforced, the victim, regardless of whether to issue the qualification certificate for acquisition of farmland under his name, is in the position to claim the return of the victim’s share among the instant real estate, the Defendant, the trustee, was guilty of embezzlement

In light of the above legal principles and records, the judgment of the court below is just, and there is no error of law in its judgment in the misapprehension of legal principles as to farmland sales contract, the former Farmland Reform Act, and the Farmland Act.

Therefore, the appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices.

Justices Lee Hong-hoon (Presiding Justice)