In a case where a real estate sales contract was concluded between a truster and a trustee without knowledge that there was a title trust agreement between the truster and the trustee, and the registration of ownership transfer of such real estate was made in the name of the trustee, whether such trustee constitutes “a person who keeps another’s property” under Article 355(1) of the Criminal Act (negative)

The crime of embezzlement is established when a person who keeps another's property embezzled such property. According to Articles 2 subparagraph 1 and 4 of the Act on the Registration of Real Estate under Actual Titleholder's Name, where a truster and a trustee enter into a title trust agreement with the owner without knowing the existence of the title trust agreement, and accordingly, a sales contract concerning the real estate was concluded between the owner and the trustee without knowing the existence of the title trust agreement, and the registration of ownership transfer was made in the name of the trustee pursuant to the sales contract, the change in the real right to the relevant real estate by the registration of ownership transfer is valid. Meanwhile, the title trust agreement between the truster and the trustee is null and void. Thus, the trustee shall be deemed to have acquired the ownership of the relevant real estate in the relationship between the truster and the truster, and therefore,

Article 35(1) of the Criminal Act, Article 2 subparag. 1, and Article 4 of the Act on the Registration of Real Estate under Actual Titleholder’s Name.

Supreme Court Decision 99Do3170 delivered on October 12, 1999 (Gong1999Ha, 2384) Supreme Court Decision 99Do527 delivered on February 22, 2000 (Gong2000Sang, 884)

Defendant

Prosecutor

Seoul District Court Decision 98No5434 delivered on November 24, 1998

The appeal is dismissed.

We examine the grounds of appeal.

The crime of embezzlement is established when a person who keeps another's property embezzled such property. According to Articles 2 subparagraph 1 and 4 of the Act on the Registration of Real Estate under Actual Titleholder's Name, where a truster and a trustee enter into a title trust agreement with the owner without knowing the existence of the title trust agreement, and accordingly, a sales contract concerning the real estate was concluded between the owner and the trustee without knowing the existence of the title trust agreement, and the registration of ownership transfer was made in the name of the trustee pursuant to the sales contract, the change in the real right to the relevant real estate by the registration of ownership transfer is valid. Meanwhile, the title trust agreement between the truster and the trustee is null and void. Accordingly, the trustee shall be deemed to have acquired the ownership of the relevant real estate in the relationship between the truster and the truster as well as the former

According to the reasoning of the judgment below, the court below held that the defendant purchased 7,237/43,737 shares out of 43,737 square meters of 10,000,000,000,000,000,000,000,000,000,0000,000,000,0000,0000,000,000,0000,000,0000,0000,0000,0000,0000,0000,0000,0000,000,0000,000,000,0000,000,000,000,000,000,000,000,000,000,000,00,00,000 won.

In light of the above legal principles and records, the fact-finding and decision of the court below is just, and there is no error in the misapprehension of legal principles as to the attribution of ownership in real estate title trust or the Act on the Registration of Real Estate under Actual Title Trust.

Therefore, the appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Yoon Jae-sik (Presiding Justice)