[1] The meaning of "Refusal to return" under Article 355 (1) of the Criminal Code and the criteria for its determination

[2] The intent of refusal of return and unlawful acquisition based on justifiable grounds

[3] Where a church is divided, the relationship of attribution of the church properties

[4] The case reversing the judgment below which held that the crime of embezzlement is established where the church refuses to claim the return of the divided church's properties after the division

[5] Whether larceny is established in a case where a church gets to use only its church properties after division (affirmative)

[1] "Refusal to return" under Article 355 (1) of the Criminal Code refers to a declaration of intent to exclude the owner's right against the stored goods. Thus, in order to constitute embezzlement, the person who keeps another's property is not sufficient to simply refuse to return the goods, and the refusal to return should be deemed to be the same as the embezzlement act, taking into account the reasons for refusal to return and the subjective intent.

[2] The so-called intention of unlawful acquisition in the crime of embezzlement refers to the intent of the person who keeps another's property without any justifiable title to dispose of it as the owner without any justifiable title. Thus, even if he refused to return it, if he did not return it due to justifiable grounds for refusal to return it, the intention of unlawful acquisition shall not be deemed to exist.

[3] In general, in a case where one church is divided into two churches, the church's head or other generally approved regulations provide for the cases where the church is divided into two churches, so the properties of the previous church shall belong to the collective ownership of the members at the time of the division, and the members shall use and benefit from the church properties which are the objects of collective ownership within the scope of the activities of each church, unless otherwise stipulated in advance for the ownership of the properties of the previous church.

[4] The case reversing the decision of the court below on the ground that the crime of embezzlement is established in case where the church refuses to claim the return of the divided church's properties after the division and the judgment below is reversed

[5] In a case where one church is divided into more than one church, unless otherwise stipulated in the church president, etc. as to the disposal of the properties, if the properties are divided into more than one church, the properties shall be reverted to the majority of the members at the time of the division, and without the procedure, the possession of the above properties shall be excluded, and the above properties shall be subject to larceny if they were transferred to the control of only one church.

[1] Article 355 (1) of the Criminal Code / [2] Article 355 (1) of the Criminal Code / [3] Articles 275 and 276 of the Civil Code / [4] Article 355 (1) of the Criminal Code / [5] Article 329 of the Criminal Code

[1] Supreme Court Decision 88Do1213 decided Aug. 23, 198 (Gong1988, 1245) Supreme Court Decision 88Do2437 decided Mar. 14, 1989 (Gong1989, 643) Supreme Court Decision 92Do2079 decided Nov. 27, 1992 (Gong1993Sang, 315), Supreme Court Decision 93Do874 decided Jun. 8, 1993 (Gong193Ha, 2060) / [2] Supreme Court Decision 86Do2 decided Feb. 25, 198 (Gong1986, 587) decided Apr. 28, 198 (Gong1989, 1987) / [2] Supreme Court en banc Decision 86Do2897 decided Apr. 29, 198

Defendant

Defendant

Busan District Court Decision 97No303 delivered on December 19, 1997

The judgment of the court below is reversed, and the case is remanded to Busan District Court Panel Division.

The grounds of appeal are examined.

1. As to embezzlement

A. Summary of the judgment below

The summary of each embezzlement among the facts charged against the defendant is that the defendant, as the head of the Dong-ro church and the construction chairperson of the above church, kept and managed the construction contribution and the scholarship fund of the above church, and was subject to the disposition of expulsion and withdrawal from the church. On April 17, 1994, the above church pastor non-indicted 1 requested the return of the construction contribution amount of KRW 1,530,270 and the scholarship fund of KRW 4,137,210 and the total amount of the insurance money of the 21st century accumulated in the 21st century to the return of the insurance policy without any justifiable reason, and embezzled the above non-indicted 1's request for the return of the above insurance contribution amount of KRW 2,00,000 and the financial account book return equivalent to KRW 15,00,000 and the embezzlement was demanded by the above non-indicted 1 on June 7 of the same year.

The court below held that the church of this case is a church belonging to the above general assembly of the church and that the church of this case is a church of the above non-indicted 1 from around 1989, and that the defendant was in charge of the affairs of finance and management of the church as the best member of the above church. However, on May 195, the defendant argued that the non-indicted 1 did embezzlement and gambling of the church's money for 40 members among the 10 members of the church, and that there was a disturbance for the above church because the non-indicted 1 did not follow the above provisional disposition of the church of this case, and that the non-indicted 1 did not follow the above provisional disposition of the above church of the above church of the above general assembly of the above church of this case, and that the non-indicted 1 did not follow the above provisional disposition of the church of this case, and that he did not follow the above provisional disposition of the above church of the above church of this case, and that he did not request the above non-indicted 1 to dismiss the judgment of the above defendant church of this case.

(b) Markets:

"Refusal to return" under Article 355 (1) of the Criminal Act means the expression of intent to exclude the owner's right against the deposited property. Thus, in order for a church to constitute embezzlement, the fact that the custodian of another's property simply refuses to return it, and the refusal to return should be sufficient to the extent that the act of embezzlement can be deemed to be the same as the act of embezzlement by taking account of the subjective reasons for refusal to return and the subjective opinions (see, e.g., Supreme Court Decisions 88Do2437, Mar. 14, 1989; 93Do874, Jun. 8, 1993). The so-called intention to acquire illegal property in embezzlement refers to the expression of intent to dispose of the property of another person with the owner's own property as at the time of division without a legitimate title. Thus, even if the church refuses to return it, if the church's properties are not returned due to justifiable reasons, it cannot be deemed that it has an intention to obtain unlawful ownership in advance, such as the church's properties which belong to 9. 9.

However, according to the facts and records acknowledged by the court below, the church of this case is divided into two churches, such as a church with the center of Nonindicted 1, and a church with the support of the defendant and the above members, as decided by the court below, and eventually, the defendant et al. left the church on December 10, 1985. However, according to the Constitution of the Korea Veterans Association, the right to trial on the general correspondence belongs to the church, and exceptionally belongs to the association of the above members. The above disposition to remove the church is not a legitimate trial agency (the above church party did not leave the church as the head of the church and closed the church, so it was possible to hold a trial on the above church's property right by the above non-indicted 1, an individual, who is the above non-indicted 1, who is the head of the above church, and the above non-indicted 1, who is the representative of the church, and the above non-indicted 1, who is the non-indicted 1, to leave the church's general meeting, and the above disposition of the defendant 1, who is unlawful.

Therefore, as seen earlier, if the articles that the above non-indicted 1 demanded the above non-indicted 1's religious services belong to the collective ownership of the members before they come into two parts, and the members may use and benefit from the church properties which are the object of collective ownership within the scope of the purpose of each church activity, and the above disposition to remove and remove the church properties against the defendant et al. is null and void since it was not made by the judicial authority under the above Constitution, the above disposition to remove and remove the church properties against the defendant et al. is not made by the above non-indicted 1's religious services and the above non-indicted 1's religious services cannot claim the return of the church properties without the majority of the members before they come into two parts, it shall not be concluded that the defendant refused the return with the intention of unlawful acquisition.

Nevertheless, the court below did not properly examine the reason why the defendant refused to return the church property, and if that defendant refuses to return the church property unilaterally kept without complying with the total of the members, it did not exhaust all necessary deliberations, but did not err by misapprehending the legal principles on the intention of unlawful acquisition of embezzlement, and it clearly affected the conclusion of the judgment. Therefore, the ground of appeal pointing this out has merit.

2. As to larceny

In case where one church is divided into two or more parts, unless otherwise provided for in the church head, etc., the church head, etc. shall own the properties according to the total of the members at the time of the division, and if the church head, without taking such procedures, did so with the awareness that the possession of the above properties is excluded and moves to the control of the church head, it shall constitute larceny (see Supreme Court Decision 83Do2981, Aug. 21, 1984).

According to the records, in the situation where the Dong branch of this case was actually divided into two practically as above, the defendant appears to be a clerical error in the judgment of the court of first instance on May 23, 1996 (refer to June 5, 199 of the judgment of the court of first instance. 2nd 385 of the investigation records). In order to exercise his sports, the defendant shall cause the members of the youth department of this case who belong to the defendant to bring about the movement of this case to the above church, and shall use the movement of this case to the above church in the above church, and shall be kept on the rooftop of the defendant's apartment house, and the fact that the defendant refused the request for the return of the opposing members, and therefore the defendant shall be deemed to have committed the movement of this case with the intention of unlawful acquisition.

In light of the above legal principles and records, we affirm the court below's finding the defendant guilty of the thief crime of this case, and there is no error in the misapprehension of legal principles as to the intention of unlawful acquisition of larceny as alleged in the ground of appeal.

3. Therefore, the part of the judgment of the court below regarding each embezzlement cannot be reversed, and the judgment of the court below has to be reversed since it has sentenced to one punishment for the crime of larceny in the substantive concurrent relation.

4. Therefore, the judgment of the court below is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition with the assent of all Justices who reviewed the case.

Justices Jeong Jong-ho (Presiding Justice)