2012 Highest 6477 Embezzlement

Non-employment

The Red Bindings (prosecutions) and Kim Fili-jins (Trial)

Attorney Park Do-young

July 11, 2013

The defendant shall be innocent.

The summary of the judgment against the defendant shall be published.

1. Facts charged;

The Defendant, his father, ○○-1, 254-1, 60 meters prior to 254-2, 524-13, prior to 524-13, 858 meters prior to 524-114, prior to 46 meters prior to 524-114, was established on the instant real estate for the purpose of receiving in cash the full payment of compensation money for the death of the deceased, the Korea Land Corporation established a false collateral security on the instant real estate, and died on August 2, 2008, and around October 20, 2008, tried to have the court excluding cash deposit, the mother, ○○○○, the victim Kim-be, the sibling, and the deceased Kim Jong-do, and 250 won.

The Defendant, at the Daegu District Court around October 22, 2009, received KRW 500,000,000 out of the above deposited money in the name of ○○○ in accordance with the distribution procedure under the above court-based 2008Ma2325, and embezzled 230,000 out of the above deposited money for the victims from around that time to August 201.

2. Determination

(a) Facts of recognition;

In full view of the evidence duly adopted and examined by this court, the following facts can be acknowledged.

1) The instant real estate was owned by the Defendant’s father, and the Korea Land Corporation was incorporated into the project site in the process of promoting Daegu Innovation Urban Development Project around March 2007.

2) In order to receive monetary compensation for the expropriation of the instant real estate from the Korea Land Corporation, the Defendant and the Deceased completed the registration of creation of a mortgage over the instant real estate on the ground of the Do○○○○ and the Do○○○○○ and the Do○○○○○, a false collective security, and the Do○○○ and the Do○○○○○○, a false collective security.

3) On July 22, 2008, Do○○ and Do○○○○ received a claim attachment and assignment order by subrogation as to KRW 500,000,000 among the expropriation compensation claims that the Deceased would have to acquire against the Korea Land Corporation as a result of the Korea Land Corporation’s expropriation of the instant real estate, and the said order became final and conclusive.

4) As the deceased died on August 2, 2008, the deceased’s spouse, as the deceased’s spouse, succeeded to the deceased’s property. On December 10, 2008, the deceased’s property was succeeded to the deceased’s property, and the Do○○○ and the Do○○○○○ and the Do○○○○ were issued a decision to correct the debtor as the inheritor’s heir regarding the attachment and assignment order of claims under the above subrogation on December 10, 2008.

5) Meanwhile, on October 20, 2008, the Korea Land Corporation deposited KRW 1,317,282,250 of the expropriation compensation under Daegu District Court No. 2008Hun-Ba4966 on the ground that there was a claim seizure and assignment order, etc. regarding the expropriation compensation for the instant real estate under the said subrogation.

6) The above accommodation transferred 500,000,000 won deposited deposited money to 00,000 won. The above KRW 0,000 also was the transferee of the claim upon the Defendant’s request.

7) The above 00,000,000 won was paid in the first order in the distribution procedure of the instant real estate, and the Defendant received 500,000,000 won as the above in the capacity of the above 00 won as the person entrusted with the above 00,000 won, and no other co-inheritors delegated the authority to receive the said dividends from other co-inheritors or notified other co-inheritors of the receipt of the said dividends.

8) The Defendant used KRW 500,000,000 of the dividend received without notifying other co-inheritors to use the said amount as litigation costs of the civil and criminal case related to the above confinement compensation or repayment of personal debt.

B. Determination

Since the principal agent of embezzlement is a person who keeps another's property in custody, and this refers to the possession of property through a consignment relationship, so in order to constitute embezzlement, there is a legal or de facto consignment relationship between the custodian of the property and the owner of the property (or the owner of other principal) (see Supreme Court Decision 2009Do9242, Jun. 24, 2010).

In light of the above facts, the act of establishing a right to collateral security with respect to the real estate of this case is null and void by a false conspiracy, and the act of acquiring the right to collateral security with respect to the above ○○○○○○○○○○○○○○○○○○○○○○○○ and the above 000 won is also null and void by a false conspiracy with a false conspiracy. As such, 50,000 won of the dividend received by the Defendant is jointly inherited by co-inheritors, including the

However, in a case where a divisible claim, such as a monetary claim, is jointly inherited, it shall be naturally divided and reverted to co-inheritors according to the statutory share of inheritance at the time of commencing the inheritance (see, e.g., Supreme Court Decision 80Da1847, Nov. 5, 1980). Even if one of the co-inheritors was not entrusted by another co-inheritors with the authority to receive the repayment of the inherited claim, even though he/she did not independently receive the repayment of the claim from other co-inheritors, the Defendant cannot be said to have established any consignment relationship with the other co-inheritors as to the said amount (see, e.g., Supreme Court Decision 2005Do5338, Jun. 30,

In accordance with such a legal doctrine, the Defendant did not have been delegated with the authority to receive dividends from other co-inheritors when receiving the said dividends, and did not notify other co-inheritors of the receipt of dividends. As seen earlier, the Defendant and other co-inheritors do not have any legal or de facto trust relationship among the Defendant and other co-inheritors, and the Defendant cannot be deemed to have the status of a person who keeps the said dividends for other co-inheritors.

Therefore, the defendant cannot be punished for embezzlement, even though he/she bears the obligation to return the above dividends received by the defendant exceeding his/her share of inheritance to other co-inheritors for unjust enrichment.

3. Conclusion

Thus, the above facts charged constitute a case where there is no proof of facts constituting a crime, and thus, it is not guilty pursuant to the latter part of Article 325

Judge Park Sung-sung

1) After that, the Korea Land Corporation deposited the land expropriation compensation for the instant real estate, and the Do Governor transferred the deposit payment claim amounting to KRW 500 million to Do Governor.

In the distribution procedure, Do governor received dividends of KRW 420 million, excluding the amount of credit again transferred to a third party among the above bonds that were transferred in the distribution procedure.

However, the Defendant’s right to collateral security in the name of Do○○ and Do○○○○○’s name, which was established on the instant real property, is null and void

The claim attachment and assignment order executed also asserted as invalid and the lawsuit of demurrer against the Do governor-general of the Daegu District Court 2009Kahap12874

The court of first instance rendered a judgment citing part of the defendant's claim on the premise that the above right to collateral security is null and void, and Do governor-O's claim

Although the above judgment was dismissed, it became final and conclusive as it is.