[1] Whether embezzlement is established in a case where a person entrusted with a limited amount of funds and used funds for purposes other than the limited purpose (affirmative)

[2] The case holding that a crime of embezzlement is established where a management company of an aggregate building uses it as a general security while it has received money from a sectional owner as a special repair reserve from the sectional owner

[3] The criteria for determining whether a person who keeps another's property in the crime of embezzlement of real estate is in the position of a person, and whether embezzlement is established in a case where one of the co-owners of real estate arbitrarily disposes of or leases another co-owner's

[4] The case holding that the crime of embezzlement is not established in the case where part of the underground parking lot, which is the common area owned by all sectional owners, is arbitrarily consumed for rent that one of them rents for exclusive use

[1] The crime of embezzlement is established where a person entrusted with a limited amount of funds and used funds for purposes other than the limited purpose

[2] The case holding that a crime of embezzlement shall be established where a management company of an aggregate building uses it as a general security while it has received money from a sectional owner as a special repair reserve from the sectional owner

[3] Unlike in the case of a movable property, the status of a person who keeps another's property in the crime of embezzlement as to a real estate shall be determined depending on whether the person has the ability to dispose of the real estate effectively to a third party, rather than on the possession of the real estate. As such, even if one of the co-owners of the real estate arbitrarily disposes of or leases another co-owner's shares, the crime of embezzlement is not established

[4] The case holding that the crime of embezzlement is not established in the case where part of the underground parking lot, which is the common area owned by all sectional owners, is consumed at will by one of them for their own lease and received by them

[1] Article 355 (1) of the Criminal Code / [2] Article 355 (1) of the Criminal Code / [3] Article 355 (1) of the Criminal Code / [4] Article 355 (1) of the Criminal Code

[1] Supreme Court Decision 96Do8 delivered on April 22, 1997 (Gong1997Sang, 167), Supreme Court Decision 97Do1520 delivered on September 26, 1997 (Gong1997Ha, 3346), Supreme Court Decision 98Do408 delivered on July 9, 199 (Gong1999Ha, 1671), Supreme Court Decision 99Do4923 delivered on March 14, 200 (Gong200Sang, 100Sang, 101), Supreme Court Decision 2001Do179 delivered on May 10, 202 (Gong2002Ha, 148), Supreme Court Decision 209Do20639 delivered on August 23, 2002 (Gong2098, 20638, 209Do262639 delivered on August 23, 2002)

Defendant 1 and three others

Prosecutor

Law Firm Han-ro, Attorneys Ansan-won et al.

Seoul District Court Decision 2003No1307 Delivered on October 29, 2003

The part of the judgment of the court below against the defendants 1, 3, and 4 is reversed, and that part of the case is remanded to the Panel Division of the Seoul Central District Court. The prosecutor's appeal against the defendants 2 is dismissed.

1. Determination on the embezzlement of special repair reserve funds

The court below acknowledged the facts in this part of the charges that Defendant 1, Defendant 3, and Defendant 4 arbitrarily used the special repair reserve funds received from the sectional owners of building 1 and embezzled them in the course of their business, based on the macroscopic evidence. On the basis of the facts, the court below determined that the special repair reserve funds paid by the sectional owners of building 1 to the non-indicted corporation, the managing company of building 1, paid to the non-indicted corporation in return for management pursuant to the management consignment agreement, is the money of the nature that ownership belongs to the non-indicted corporation and will be processed according to its business execution method, and that the money stored for the sectional owners was not the money preserved for the non-indicted corporation.

However, such judgment of the court below is hard to accept.

The purpose or purpose of a third party is to be recognized as embezzlement if it uses funds for purposes other than the limited purpose upon entrustment (see, e.g., Supreme Court Decision 2002Do366, Aug. 23, 2002). In other words, the non-indicted stock company, which is the managing company of the 1 building, collects the above special repair reserve in accordance with the long-term maintenance and repair and the long-term repair plan formulated separately for replacing old parts, separately from general management expenses collected in accordance with the management contract concluded with the sectional owners and the management regulations established based thereon, separately from general management expenses collected. The intent of the sectional owners of the 1 building who paid the special repair reserve or the intention of the non-indicted stock company which collects the special repair reserve is also deemed to have paid or collected the special repair reserve for the purpose of such use. In full view of the following circumstances such as the fact that the managing company is replaced or destroyed or removed before the special repair reserve was caused by the special repair reserve, the special repair reserve of this case is recognized as being used for the limited purpose of 13rd facilities and its use.

Nevertheless, the court below reversed the judgment of the court of first instance which convicted the non-indicted corporation of this part of the charges against the remainder, defendant 1, 3, and 4, which concluded that the ownership of the special repair reserve belongs to the non-indicted corporation, and sentenced the non-indicted corporation to be acquitted. In so doing, the court below erred by misapprehending the legal principles on the embezzlement,

2. Determination on embezzlement of the price of underground parking lots

Unlike in the case of movable property, the status of a person who keeps another’s property in the crime of embezzlement as to a real estate shall be determined depending on whether the person has the capacity to dispose of the real estate to a third party, rather than on the possession of the real estate effectively. As such, even if one of the co-owners of the real estate arbitrarily disposes of or leases another co-owner’s shares, the crime of embezzlement is not established as it has the capacity to dispose of the shares (see, e.g., Supreme Court Decision 2000Do565, Apr.

Even if Defendant 2 leased part of the underground parking lot, which is the common area owned by all sectional owners, exclusively, the court below held that the rent that Defendant leased and received the above common area does not belong to the custody of other sectional owners for the other sectional owners, and thus, it does not constitute embezzlement even if he arbitrarily consumed the said money. It is just in accordance with the above legal principles, and there is no error of misapprehending the legal principles as argued in the Grounds for Appeal.

3. Conclusion

Therefore, the part of the judgment of the court below regarding the embezzlement of Defendant 1, 3, and 4's appropriation reserve funds, and since this part and the part concerning the embezzlement of management expenses that the court below found not guilty of Defendant 1, 3, and 4 are related to the inclusive crime, the part concerning Defendant 1, 3, and 4 of the judgment of the court below is reversed, and this part of the case is remanded to the court below, and the prosecutor's appeal against Defendant 2 is dismissed and it is so decided

Justices Lee Yong-woo (Presiding Justice)