[1] The meaning of "Refusal to return" as stipulated in Article 355 (1) of the Criminal Code, and the intention to refuse to return due to justifiable grounds and to acquire unlawful profits

[2] The case reversing the judgment of the court below that judged that the defendant refused to return the article had an intention to obtain unlawful acquisition on the ground of misapprehension of legal principles as to the intent to obtain unlawful acquisition

[1] Articles 355(1) and 356 of the Criminal Act / [2] Articles 355(1) and 356 of the Criminal Act

[1] Supreme Court Decision 98Do126 delivered on July 10, 1998 (Gong1998Ha, 2174) Supreme Court Decision 2000Do637 delivered on September 4, 2002 (Gong2002Ha, 2374)

Defendant

Defendant

Gwangju District Court Decision 2004No1586 Decided January 14, 2005

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

We examine the grounds of appeal.

1. Facts charged;

The Defendant was a person engaged in construction business. On December 2002, the Defendant embezzled the H class 5 25.058t of the H class 5 of the above H class 25.058t of the market price of the H class 12,64,137 of the market price of the H class 25.058t of the above H class 12,64,137 (It is apparent that the lower court’s 25,058t of the lower court’s 25,058t of the Plaintiff’s 25,058t of the Plaintiff’s 25,058t of the H class 12,64,137 of the Plaintiff’s 160t of the Plaintiff’s Do Construction (hereinafter referred to as “Seoul-do Construction”).

2. The judgment of the court below

According to the reasoning of the judgment below, the court below acknowledged the above facts charged after compiling the following evidence, and rejected the defendant's assertion that the return of the above HH class 25.058t was refused to exercise the right of retention until it was paid due to the failure to receive the obligation related to the steel-frame production contract for the Namdo construction, on the ground of its stated reasoning, and found the defendant guilty of occupational embezzlement.

3. The judgment of this Court

However, it is difficult to accept the above recognition and judgment of the court below for the following reasons.

A. "Refusal to return" under Article 355 (1) of the Criminal Code refers to an act of expressing intent to exclude the owner's right against a custodian. Thus, the mere fact that the custodian of another's property refuses to return does not constitute embezzlement merely because the custodian of another's property refuses to return does not constitute embezzlement, and the act of refusing 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 the subjective intent, etc. Meanwhile, in embezzlement, the intent to acquire illegal property in embezzlement refers to the intent to dispose of the property without authority, as the custodian of another's property, in violation of the purpose of entrustment for his own or a third party's interest, and therefore, even if he refused to return it, if there is a justifiable reason for refusal to return it, the intent to acquire unlawful property shall not be deemed to exist (see Supreme Court Decision 98Do126, Jul. 10, 199

B. Examining the relevant evidence in light of the record, on December 202, 200, he/she contracted the construction of He/she had been supplied with the He/she had been supplied with the construction of He/she had been under construction of He/she had been under construction of He/she had been under construction of He/she had been under construction of He/she had been under construction of He/she had been under construction of He/she had been under construction of He/she had been under the name of Non-Indicted 1 (Co. 1) on January 6, 203, and he/she had been under construction of he/she had been under construction of He/she had been under construction of He/she had been under the name of Non-Indicted 5 (the construction cost of He/she had been under the name of a stock company), and the Defendant had been under the name of Non-Indicted 2's refusal to return the remaining construction cost for the purpose of returning the above construction cost for non-Indicted 5 (the construction cost of this case was under the name of Non-Indicted 1).

C. Examining these facts in light of the above legal principles, even though the goods of this case that the Defendant refused to return were owned by the Heung-gun, if the Defendant had claims, such as construction expenses, etc. for the remaining construction after preparing for construction as alleged, the Defendant appears to be able to exercise the right of retention on the goods of this case until receiving the payment, and such right of retention is not required to be specifically stated in the exercise of such right of retention. On the record, there is sufficient room to deem that the Defendant had a certain claim against the Namdo Construction because there is no other evidence that the Defendant settled the construction expenses, etc. other than the Defendant received the design expenses from the Namdo Construction at the time when the said construction was waived. Therefore, in full view of the Defendant’s reasons for refusing to return the goods of this case and its subjective intent, it cannot be concluded that the Defendant refused to return the goods of this case

The court below held that the defendant intended to acquire illegal goods of this case on the ground that he disposed of the goods of this case or used them for his own construction without any delay in rejecting the return of the goods of this case. However, according to the records, since the defendant's disposal of the goods of this case or useful them for his own construction could have been recognized at the time of the completion of the construction of the new construction, it cannot be concluded that the defendant had the intention to acquire illegal goods at the time of the above refusal of return, regardless of whether the above disposal act of this case constitutes separate embezzlement act. Further, it cannot be concluded that the defendant had the intention to acquire illegal goods at the time of the above refusal of return. Meanwhile, according to the records, it is hard to view that the defendant disposed of or used the goods of this case after the completion of the new construction of this case with the consent of the Do Construction and the Do Construction after the completion of the construction of this case and the Do Construction with the above disposal or use of the goods of this case on the part of the defendant's new construction of the goods of this case, it is hard to view that the defendant had to request the above return of the goods of this case.

D. Therefore, it is difficult for the court below to conclude that the defendant had an intention of unlawful acquisition in the return refusal of the goods of this case or in the disposal of the goods of this case before examining in detail what the defendant refused to return the goods of this case, what detailed circumstances the defendant refused to dispose of the goods of this case, how the defendant useful circumstances and timing for his own work, and whether the defendant obtained the consent of the non-indicted 1 at the time, along with the completion of the subcontract agreement between the defendant and the Namdo Construction. However, it is difficult to conclude that the defendant had an intention of unlawful acquisition in the return of the goods of this case or in the disposal of the goods of this case. However, the court below did not exhaust all necessary deliberations and did not err by misapprehending the rules of evidence or by misapprehending the legal principles on the intention of unlawful acquisition of the goods of this case. Thus, the ground of appeal assigning

3. Conclusion

Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Yong-dam (Presiding Justice)