Defendant

Prosecutor

Delay Kim

Attorney Kim Jae-chul

Seoul Northern District Court Decision 2010Ma1600 Decided October 28, 2010

The prosecutor's appeal is dismissed.

1. Summary of grounds for appeal;

The mutual title trust of this case is a bilateral title trust, and it is reasonable to apply the principle of embezzlement in accordance with the general law of the bilateral title trust where one of the co-owners in the mutual title trust relationship, as in the instant case, disposes of another person’s shares. In addition, as at the time of the establishment of the instant mortgage, the Defendant’s implied acceptance of another’s ownership and disposal of one’s own shares, out of ( Address 1 omitted) land and ( Address 2 omitted), after the division between the Defendant and the victims, shall be deemed to have been suspended. Therefore, the Defendant’s intention of unlawful acquisition and intent is also recognized. Nevertheless, the lower

2. Determination

A. Summary of the facts charged

Although the Defendant intended to offer the shares of Nonindicted Party 1, his father as collateral and borrow money, the Defendant did not fully satisfy the collateral value by itself on the shares of forest land of 24,744 square meters ( Address 1 omitted) (hereinafter “land of 24,744 square meters”) after the split-off at Namyang-si, Namyang-si, with the intention of offering the shares of Nonindicted Party 1 as collateral and borrowing money. The Defendant, in substance, was willing to offer and borrow money by offering the shares of 24,744/48 of forest land of 24,744 square meters ( Address 2 omitted) (hereinafter “ Address 2 omitted”) among the shares of Nonindicted Party 1, not the shares of Nonindicted Party 1, but the shares of 24,744 square meters (hereinafter “land of 24,7444 square meters after the split-off”).

On June 24, 2005, the Defendant and Nonindicted Party 1 conspireded to register the establishment of a mortgage on the part of the Defendant and Nonindicted Party 1 in order to 15 persons including the victim under title trust with the amount of 49,488/24, out of the land at the time of the said division ( Address 2 omitted) on June 24, 2005 and kept for 15 persons including the victim.

Accordingly, the Defendant and Nonindicted Party 1 conspired and embezzled 24,744/48 of the land ( Address 2 omitted) after division.

B. The judgment of the court below

The lower court acquitted the Defendant on the following grounds.

In a case where each specific part of the land is owned by a mutual title trust and the land is divided, a mutual title trust relationship exists after the co-ownership registration of each divided land is transcribed, and in a sectionally owned co-ownership relationship, each co-owner agrees to dispose of each specific part freely. Thus, in light of the legal principle that each co-owner can dispose of his own specific part and transfer his share registration freely, each co-owner's act of establishing a collateral security right with respect to the share of 24,744/48 of the shares of Non-Indicted 1 in the land ( Address 2 omitted) after the division in the mutual title trust relationship between the defendant and Non-Indicted 1 does not constitute embezzlement.

C. Judgment of the court below

In light of the above legal principles, if a co-ownership registration of each of the specific parts of the land was divided into a mutual title trust registration, the mutual title trust relation continues to exist as it is after the co-ownership registration of each divided land is transcribed (see Supreme Court Decisions 91Da27952, May 26, 1992; 92Da42460, 42477, April 27, 1993; 92Da42477, April 27, 199), and in the sectionally owned co-ownership relation, each co-owner agrees to dispose of the specific parts of the land freely, and the co-owner can dispose of the specific parts of the land separately and freely transfer the share registration corresponding thereto (see Supreme Court Decisions 67Da1847, Apr. 16, 1968; 2007Da83632, Oct. 15, 209).

Furthermore, as long as a mutual title trust relationship exists, it may be deemed that the Defendant and Nonindicted Party 1 consented to the mutual consent of each other to dispose of the specific portion of their own land freely. Thus, barring any special circumstance, it is reasonable to view that the act of the Defendant and Nonindicted Party 1 establishing the right to collateral security for Nonindicted Party 1’s share in the land ( Address 2 omitted) after the division, which is the ownership of Nonindicted Party 1, disposes of the co-ownership shares indicating the sectional co-ownership relation of the land ( Address 1 omitted) after the division (see Supreme Court Decision 2004Da32992, Jun. 26, 2008, etc.) and that the Defendant and Nonindicted Party 1 did not establish the right to collateral security for the land ( Address 1 omitted) after the division.

Therefore, insofar as Nonindicted Party 1 had a legitimate authority to dispose of Nonindicted Party 1’s shares among the land ( Address 2 omitted) after the split-off, the Defendant and Nonindicted Party 1’s act of establishing a collateral security, such as the facts charged, does not constitute embezzlement.

On the other hand, even if the defendant and the non-indicted 1 filed a lawsuit for the registration of transfer of ownership on the ground of termination of trust for the purpose of arranging the ownership relationship between the land (resident 1 omitted) and the land after the division against the equity right holders including the victims on September 8, 2003, the mutual title trust relationship between the non-indicted 1 and the victim after the division cannot be deemed to have been terminated until the registration of transfer of ownership is completed.

The prosecutor's assertion is without merit.

3. Conclusion

Therefore, the prosecutor's appeal is without merit, and it is dismissed in accordance with Article 364 (6) of the Criminal Procedure Act. It is so decided as per Disposition.

Judge Lee Jong-soo (Presiding Judge)