A. Whether a creditor who takes custody of movables possessed by a debtor through a contract for transfer of movables by the change of possession can be the subject of embezzlement (affirmative)

B. The case reversing the original judgment on the ground that there was an error of finding facts not based on evidence

A. In a case where the obligor concludes a security agreement on movable property for the purpose of securing the performance of obligation and still occupies the movable property by the method of possession revision, if the contract only takes the form of transfer for the purpose of securing the obligation, and its substance is the principal content of the procedure of liquidation of securing the obligation and executing the security right, the ownership of the movable property still remains in the obligor, barring special circumstances. The obligee is merely acquiring the security right on transfer, and the obligee who keeps the movable property for other reasons can be the subject of embezzlement.

B. The case reversing the judgment of the court below on the ground that the facts were not based on evidence

A. Article 355 of the Criminal Procedure Act

A. Supreme Court Decision 80Do2097 Delivered on November 11, 1980

Defendant 1 and one other

Defendants

Seoul Criminal Court Decision 87No5502 delivered on April 20, 1988

The judgment of the court below against Defendant 1 is reversed, and the case is remanded to the Panel Division of the Seoul Criminal Court.

Defendant 2’s appeal is dismissed.

1. We examine the Defendants’ ground of appeal No. 1 on embezzlement.

When comparing the evidence adopted by the judgment of the court below and the judgment of the court of first instance that the court below maintained, the defendants and the non-indicted 1's creditors, who were non-indicted 1's creditors, shall first remove the items, such as captured trees on the part of the non-indicted 1's management council for the purpose of avoiding seizure, etc., from other creditors, and shall prepare measures for follow-up management. The defendants shall transport the above item to the non-indicted 2's house in his name on May 7, 1985 and keep it on May 17, 195, while the defendants conspired with the defendants around May 17, 1985, and can sufficiently recognize the fact that the above item was disposed of to others as at the time of the transfer to the third party of the non-indicted 2's management in Daegu, without any objection, and therefore, it cannot be viewed that there was an error in the misapprehension of the rules of evidence, thereby recognizing the facts contrary to the rules of evidence.

2. We examine the Defendants’ ground of appeal No. 3.

The subject of embezzlement is the person who takes custody of another person's property. However, even if the debtor concludes a security agreement on movable property for the purpose of securing the performance of obligation and still occupies such movable property by the method of possession revision, if the contents of the above security agreement merely takes the form of transfer for the purpose of securing the obligation and settling accounts for the security of obligation, the ownership of the movable property still remains on the debtor, barring special circumstances, barring any special circumstance, and the creditor does not merely take possession of the right to collateral, and thus the creditor who takes custody of the movable property for any other reason can be the subject of embezzlement (see Supreme Court Decision 80Do2097, Nov. 11, 1980).

According to the statement in the notarial deed of movable property transfer loan contract attached to the record, the statement in the prosecutor's statement as to the non-indicted 1, and the statement in the court of first instance at the court of first instance as to the defendant, on November 29, 1984, the defendant 1 and the non-indicted 1 maintained the ownership of the above movable property to the non-indicted 1, who sold the above movable property to the non-indicted 1, as the main contents of the settlement procedure were to enter into a transfer security contract with the amount of claim as of November 28, 1985 to secure the supply of goods and claims arising from the bill or check transaction between the two persons (the above contract Articles 12 and 13), and the non-indicted 1 were delivered as the method of continuing possession of the above movable property. Thus, according to the legal principles as seen above, the ownership of the above movable property is still reserved to the non-indicted 1, who did not transfer the property to the above non-indicted 1, the subject of the above transfer security right after the transfer.

3. We examine Defendant 1’s ground of appeal Nos. 1 and Defendant 2 as to the ground of appeal No. 2.

According to the reasoning of the judgment of the court of first instance and the written indictment bound by the records, and each of the written applications for changes of indictment, the prosecutor initially focused on the act of the above defendant's act of removing the above items such as the above items from the Lesin Compensation Council without his consent. However, although the above defendant stolen the items of the non-indicted No. 1, the above defendant submitted to the non-indicted No. 1 a complaint stating that "the non-indicted No. 1 made an accusation against the above defendant's act of cutting off the items" against the non-indicted No. 1, but it was prosecuted that the defendant's act focused on the act of embezzlement at the place of the above items after the first instance court's deliberation was completed, the above defendant disposed of the articles of the non-indicted No. 1 and embezzled the above items, and the non-indicted No. 1 filed a complaint against the above facts, the court of first instance submitted to the non-indicted No. 1's application for changes of indictment to the indictment to the non-indicted No. 1. 1.

Therefore, it is examined whether the above defendant filed a complaint against the non-indicted 1 as the latter. According to the above defendant's statement, which forms the basis for the instant non-indicted 1's accusation, even though the above defendant took out articles such as captures and other things at Lesin Compensation Council after agreement with the non-indicted 1, it is stated that the non-indicted 1 filed a complaint under the name of a crime of special larceny for the purpose of criminal punishment against the above defendant. In addition, according to each statement of the above defendant's written statement of the defendant (3rd 16 pages) and the prosecutor's preparation of the prosecutor's protocol for the supplement of the above complaint, it is obvious that the above defendant filed a complaint with the above purport, and there is no evidence to prove otherwise that the defendant filed a complaint with the same content as the latter.

Therefore, even though there is no evidence to prove that the above defendant was absent the same content as the latter among the facts charged in this case, the court below found the defendant guilty as to this point with only the evidence cited by the court of first instance judgment. Since it is obvious that the court below did not have any error of finding facts without using evidence in violation of the rules of evidence and it does not have any error of finding facts, and it is obvious that such illegality has affected the conclusion of the judgment, the court below's judgment on the order of the defendant's hand is not reversed.

Therefore, with respect to Defendant 1, the entire judgment of the court below, which was sentenced to concurrent crimes under the former part of Article 37 of the Criminal Act, is reversed, and the case is remanded to the court below. Defendant 2’s appeal is dismissed, and it is so decided as per Disposition by the assent

Justices Lee Chang-chul (Presiding Justice)