In a case where a creditor receives a check from an obligor for payment security of a claim, whether the creditor is a person who keeps another’s property, the subject of embezzlement (negative)

Where a creditor holds a check issued and delivered by the obligor to secure payment of the check, unlike the case where he/she holds a check according to the consignment relationship with the obligor, his/her rights on the check shall belong to the obligee effectively, and the agreement on the return of the check between the obligee and the obligor is merely a ground for personal defense in the underlying relationship, the obligee cannot be deemed to be in the position of the person who holds another’s property, the subject of embezzlement

Article 355(1) of the Criminal Act

[Plaintiff-Appellant-Appellee] Plaintiff 1 and 1 other (Law Firm Gyeong, Attorneys Park Jong-soo et al., Counsel for plaintiff-appellant-appellant-appellee)

Defendant

Prosecutor

Seoul District Court Decision 99No8105 delivered on October 20, 1999

The appeal is dismissed.

The grounds of appeal are examined.

In a case where a creditor holds a check issued and delivered by the debtor to secure payment of the claim, unlike the case where the creditor holds a check according to the consignment relationship with the debtor, the right on the check shall be effective in the creditor, and the agreement on the return of the check between the creditor and the debtor is merely a ground for personal defense in the underlying relationship, and the above creditor cannot be deemed to be in the position of the person who holds another's property, the subject of embezzlement (see, e.g., Supreme Court Decision 87Do2078, Jan. 19, 198).

According to the reasoning of the judgment below, the court below held that the defendant's act was justified in accordance with the above legal principles, and there is no error of law by misunderstanding the legal principles as to checks and embezzlement, as alleged in the grounds of appeal.

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

Justices Cho Cho-Un (Presiding Justice)