The meaning of and criteria for determining "Refusal to return" under Article 355 (1) of the Criminal Act

“Refusal of return” under Article 355(1) of the Criminal Act refers to an act of expressing intent to exclude the owner’s right against the stored goods. As such, the fact that the custodian of another’s property refuses to return does not constitute embezzlement merely by the fact that the custodian of another’s property refuses to do so, and the refusal of return should be deemed to be the same as the embezzlement, in full view of the reasons for refusal of return and subjective intent

Article 355(1) of the Criminal Act

Supreme Court Decision 86Do1516 decided Oct. 28, 1986 (Gong1986, 3153) 88Do1213 decided Aug. 23, 1988 (Gong1988, 1245) 88Do2437 decided Mar. 14, 1989 (Gong1989, 643)

Defendant

Prosecutor

Suwon District Court Decision 92No136 delivered on July 10, 1992

The appeal is dismissed.

We examine the prosecutor's grounds of appeal.

“Refusal to return” under Article 355(1) of the Criminal Act refers to an act of expressing intent to exclude the owner’s right against the stored goods. As such, the fact that the custodian of another’s property refuses to return does not constitute embezzlement merely on the sole basis of the fact that the custodian of another’s property refuses to return, and the act of refusal to return should be deemed to be the same as the act of embezzlement by taking account of the reasons for refusal to return and subjective intent, etc. (see Supreme Court Decision 8Do2437, Mar. 14, 1989).

According to the facts established by the court below, the goods of this case, which the defendant refused to return, are leased one store owned by the defendant and operated a food agency at the same place, and requested the third party to set up the above store before the lease term expires due to business difficulties, and left the above store and kept the defendant. The defendant refused to return the goods of this case in the above store until the victim is paid a monthly rent of 2 months prior to the late payment by the injured party. Thus, in full view of the defendant's reasons for refusing to return the above goods and its subjective intent, it cannot be deemed that the defendant refused to return the goods with the intent of unlawful acquisition.

In this regard, the decision of the court below that acquitted the defendant on the ground that there is no proof of the crime of this case is proper, and there is no violation of law by misapprehending the legal principles on the intention of unlawful acquisition of embezzlement, such as the theory of lawsuit. The argument

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