Whether an act of arbitrarily consuming the money entrusted with the purpose and purpose of use constitutes a crime of embezzlement (affirmative), and in a case where the act of delivering money has the nature of repayment as a contractual obligation, whether the other party’s act of arbitrarily consuming the money received as repayment constitutes a crime of embezzlement (negative in principle)

Article 355(1) of the Criminal Act

Supreme Court Decision 2003Do6733 Decided March 9, 2006 (Gong2006Sang, 678), Supreme Court Decision 2007Do10341 Decided December 11, 2008, Supreme Court Decision 2013Do8121 Decided November 14, 2013

Defendant

Defendant

Law Firm all, Attorneys Seo Young-young et al.

Changwon District Court Decision 2012No518 decided August 22, 2013

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

The grounds of appeal are examined.

1. According to the reasoning of the judgment below, the court below found the facts as stated in its reasoning after compiling the adopted evidence, and found the defendant guilty of the conjunctive charges of this case with the purport that the non-indicted 1 transferred KRW 75 million to the non-indicted 2, who was the former owner of each of the lands of this case, and embezzled the remaining amount of KRW 84 million for voluntary consumption, by specifying its purpose and purpose. The defendant also agreed to use the above money to the non-indicted 1 according to the above purpose and purpose and entrusted it to the non-indicted 1, and thereby, the defendant was in the custody status of KRW 159 million for the non-indicted 1.

2. However, the lower court’s determination is difficult to accept for the following reasons.

A. The crime of embezzlement is a crime punishing a person who keeps another's property to embezzled such property, and therefore, in order to be established the crime of embezzlement, the property subject to embezzlement is required to be owned by another person. The deposited money with the purpose and purpose of embezzlement reserved ownership to the truster until used for the specified purpose and purpose, and if the trustee arbitrarily consumes the money (see, e.g., Supreme Court Decision 2007Do10341, Dec. 11, 2008). However, in a case where the delivery of money has the nature of repayment as a contractual obligation, barring any special circumstance, it does not constitute the crime of embezzlement even if the other party arbitrarily consumes the money received by the other party with the repayment, as the money was delivered to the other party, barring any special circumstance.

B. According to the reasoning of the lower judgment and the evidence duly admitted by the lower court, the Defendant: (a) concluded a sales contract on the land other than 13 lots (hereinafter “each of the instant land”) between Nonindicted 2 and Nonindicted 3 in the name of the Defendant around August 2008; (b) on the one hand, around August 8, 2008, on the one hand, KRW 464 billion for each of the instant land; and (c) on the other hand, the Defendant agreed to pay KRW 500 million to Nonindicted 1 and KRW 500 million for the remaining 60 million for each of the instant land; and (d) on the one hand, the Defendant entered into a sales contract with Nonindicted 2 in the name of KRW 1 and KRW 500,000,000,000,000 for KRW 500,000,000 for the remaining 60,000,000 won for each of the instant land; and (e) the Defendant agreed to sell the remaining 600,01 billion won for each of the instant land.

C. Examining the above facts in light of the legal principles as seen earlier, Nonindicted 1, etc.’s delivery of KRW 159 million to the Defendant around October 2008 constitutes an act of repayment to meet the obligation to pay the purchase price to the Defendant under the instant sales contract. Therefore, barring any special circumstance, barring any special circumstance, it is difficult to view that the Defendant is in the status of keeping the Defendant for Nonindicted 1, etc., since ownership is transferred by the delivery to the Defendant. Furthermore, at the time of the conclusion of the instant sales contract, the Defendant agreed with Nonindicted 1, etc. to pay KRW 164 million out of the purchase price to Nonindicted 2, a seller of the prior sales contract, or the Defendant agreed to pay KRW 159 million to Nonindicted 1, etc. as the purchase price of the prior sales contract, or that the Defendant would pay KRW 159 million to Nonindicted 1, etc. as the purchase price of the prior sales contract. It does not change on the ground that the Defendant agreed to the effect that the Defendant would

Nevertheless, the lower court, contrary to its stated reasoning, determined that the Defendant was in the custody of Nonindicted 1 for Nonindicted 2 after receiving KRW 159 million from Nonindicted 1 as the payment for the remaining amount under the preceding sales contract with Nonindicted 2. In so doing, the lower court erred by misapprehending the legal doctrine on embezzlement, or by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules, thereby adversely affecting the conclusion of the judgment. The allegation contained in the grounds of appeal on this point is with merit.

3. Therefore, the part of the judgment of the court below concerning the ancillary facts cannot be reversed, and accordingly the part concerning the primary facts charged shall be reversed. Therefore, the whole judgment of the court below shall be reversed, and the case shall be remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench

Justices Kim Yong-deok (Presiding Justice)