[1] Whether embezzlement is established where a trustee disposes of real estate at his/her discretion in a so-called title trust without intermediate omission registration (affirmative)

[2] The method of identifying the party to the contract where the actor entered into the contract under another person's name

[3] In a case where an agreement different from the content of the disposal document is acknowledged, whether the probative value of the disposal document and the principle of free evaluation of evidence is applied (affirmative)

[4] Whether embezzlement is established in a case where a trustee voluntarily disposes of farmland after the time when the title truster becomes entitled to obtain a certificate of farmland sale with respect to the title trust of farmland (affirmative)

[5] Whether the qualification certificate for acquisition of farmland under the Farmland Act constitutes an effective requirement for a legal act which causes acquisition of farmland (negative), and whether the claim may be rejected on the ground that the qualification certificate for acquisition of farmland was not granted in a lawsuit claiming the registration of acquisition of farmland (negative)

[1] Article 35(1) of the Criminal Act, Article 2 subparag. 1, Article 3(1), and Article 4 of the Act on the Registration of Real Estate under Actual Titleholder’s Name / [2] Article 105 of the Civil Act / [3] Article 105 of the Civil Act, Article 202 of the Civil Procedure Act / [4] Article 355(1) of the Criminal Act, Article 19(2) of the former Farmland Reform Act (repealed by Article 2 of the Addenda to the Farmland Act, Act No. 4817, Dec. 22, 1994) / [5] Article 8 of the Farmland Act

[1] Supreme Court Decision 2001Do6209 decided Feb. 22, 2002 (Gong2002Sang, 833), Supreme Court Decision 2002Do2926 decided Aug. 27, 2002 (Gong2002Ha, 2371) / [2] Supreme Court Decision 2000Da3897 decided May 29, 200 (Gong201Ha, 1455), Supreme Court Decision 203Da4059 decided Dec. 12, 2003 (Gong204, 1255) / [3] Supreme Court Decision 95Nu7239 decided Sept. 10, 206 (Gong1996Ha, 306Ha, 3084 decided Apr. 29, 209)

Defendant

Defendant

Attorney Lee Sang-hoon

Suwon District Court Decision 2007No4245 Decided December 6, 2007

The appeal is dismissed. 80 days out of detention days after the appeal shall be included in the original sentence.

The grounds of appeal are examined.

1. Regarding ground of appeal No. 1

Where a trustor entered into a title trust agreement with a trustee with respect to real estate, and the truster entered into a contract with the seller as a party to the contract; Provided, That where the registration of the title trust was made by directly transferring the real estate from the seller to the trustee, embezzlement is established if the trustee disposes of the real estate at will (see, e.g., Supreme Court Decision 2002Do2926, Aug. 27, 2002). In addition, in cases where the actor who entered into a contract takes a legal act in another’s name, in which case the actor or the nominal owner is deemed a party to the contract, the actor or the nominal owner shall be determined as a party to the contract according to the same intent if the actor and the other party agree with the intent of the other party. If the other party do not agree with the intent of the actor, the agreement shall be determined within 300/40 of the contract’s nature, content, purpose, and circumstance before and after the conclusion of the contract, the agreement shall be determined within 200/40 of the document and its reasoning.

Upon examining the reasoning of the judgment below in light of the above legal principles and records, the court below acknowledged facts as stated in its judgment after compiling the adopted evidence, and rejected the defendant's defense that the victim's so-called "title trust" was established between the non-indicted who is the title trustee in purchasing the farmland of this case, and judged that the victim entered into a sales contract with the seller as the party to the sales contract for the farmland of this case and directly transferred only the registration to the non-indicted in the future from the seller to the non-indicted, and found the defendant guilty of the crime of this case. There is no error of violation of the rules of evidence,

2. Regarding ground of appeal No. 2

Since a person eligible to purchase farmland under the former Farmland Reform Act (amended by Act No. 4817 of Dec. 22, 1994, Article 2 of the Addenda to the Farmland Act (amended by Act No. 4817 of Jan. 1, 1996, hereinafter referred to as the "former Farmland Reform Act") limited to a farmer or a person who intends to be a farmer, even in the case of title trust of farmland, if the trustee is unable to purchase the farmland under the former Farmland Reform Act, the title trust becomes null and void. However, even if the trustee is legally entitled to purchase the farmland at the time of title trust, even if the truster was unable to obtain certification of farmland sale at the time of the title trust, so long as the truster could cancel the title trust on the farmland and seek the return thereof, the truster cannot be deemed to have refused to file a request for the return of farmland under the name of the truster, such as farmland acquisition, and the trustee did not have any other legal act between the truster and the trustee, and thus, did not have any other requirement for the return of the farmland acquisition.

Examining the reasoning of the judgment below in light of the aforementioned legal principles and records, the registration of transfer from the seller of the farmland of this case to the non-indicted, the title trustee, was duly made, and the Farmland Act was enforced thereafter. Accordingly, the title truster, regardless of whether to issue the certificate of qualification for acquiring farmland in his name, the victim, who is the title truster, can cancel the title trust on the farmland of this case and claim the return of the farmland to the non-indicted. Thus, at least from that point of time, the non-indicted became the status of the custodian of the farmland of this case for the victim, and therefore, the defendant's arbitrary donation of the farmland of this case in collusion with the non-indicted on July 23, 2004, which is after the Farmland Act was enforced, constitutes embezzlement. The judgment below to the same purport is just, and there is no error in the misapprehension of legal principles as to the validity of the sales contract on farmland, the interpretation of the former Farmland Reform

3. Therefore, the appeal shall be dismissed and part of the detention days after the appeal shall be included in the original sentence. It is so decided as per Disposition by the assent of all participating Justices.

Justices Park Si-hwan (Presiding Justice)