The case reversing the judgment of the court below which denied the status of "a person who keeps another's property" in the crime of embezzlement as to the release on bail because it is judged that the sales contract for the article to be sought by the customer was concluded between the release on bail and that it was erroneous in the misapprehension of legal principles as to the crime of embezzlement or incomplete hearing.

The case reversing the judgment of the court below on the ground that there is an error of law in misunderstanding the legal principles as to the crime of embezzlement or incomplete hearing as to the status of "a person who keeps another's property" in the crime of embezzlement in the case where a person who operates the release on bail brings a thing to be sought by the customer from another on bail because the sales contract for the

Article 355(1) of the Criminal Act

Defendant

Prosecutor

Attorney Yoon Jong-hee

Seoul District Court Decision 2001No6572 delivered on November 22, 2001

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

1. Summary of the facts charged

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2. The judgment of the court below

As to the facts charged, the court below argued that since the public prosecutor did not sell the Montreald after lending it from the victim, the defendant is in the position of "a person who keeps another's property" in light of commercial customs or interpretation of the parties. Thus, even if the defendant tried to sell it at a different place between the defendant and the victim, there is no evidence to prove that there is commercial customs to return the article itself if the defendant did not sell it, and even if the defendant lent it from the victim, according to the victim's statement, the defendant and the victim did not have any duty to return it to the victim, the court below held that the defendant and the victim did not have any duty to return it to the victim, as long as the defendant did not have any capacity to sell it, the defendant did not have any duty to sell it, and therefore, the defendant did not have any duty to sell it to the customer, and therefore, it should be interpreted that the defendant did not have any obligation to sell it to the victim or to pay it later."

3. Judgment of party members

A. As to the primary facts charged, the court below held that the defendant is not liable for the civil liability to pay the price to the defendant, and it is not possible to recognize the status of "the defendant who keeps another's property in the possession of another's property in embezzlement" because the victim made an agreement between the defendant and the victim on the price and payment of the Damond, even though the victim stated that "the victim was the victim's own and well known," and the victim stated that "the victim was the victim's Damond."

B. However, we cannot accept the judgment of the court below for the following reasons.

(1) According to the statement of Non-Indicted 1, the defendant and the victim's commercial buildings, in cases where the goods sought by the customers do not go to their own stores, taking goods from the stores of other merchants and selling them to customers are regarded as mutual reliance and without any certificate, and the merchants requesting certificates are not able to fully lend the goods and make the goods according to their color without being able to do so. As such, there were cases where disputes occur between merchants by trading without one other without a certificate (see, e.g., 2nd 1st 44th , 54th , and 54th , of investigation record), and such practices are "refluences", and they lend any goods that will not lend money to each other (see, e.g., 2nd 2nd 43th , investigation record), and if the above practices exist, it appears to the effect that the funds are insufficient to cover all kinds of money operations, such as high-priced type of money operation, in order to overcome the economic potential of funds.

(2) However, according to the defendant's statement, at the time, the defendant did not want to do so by because he wanted to do so by the defendant, and returned to the victim's shop. In the above commercial building, if the defendant brought and sold goods at the south's shop within 2-3 days, it is a practice of settling the value of the goods and returning the goods if the goods are not sold (No. 20,24). According to the defendant's statement, according to the defendant's statement, the victim brought about the death of the defendant before it, and the victim brought about the release of the victim before it, and according to the victim's statement, the defendant did not return it to the victim before it (No. 20,000).

(3) In light of the above facts, if the defendant brought Damond to the victim according to the 'one-person' practice as seen earlier, the defendant's intention at the time was to sell the Damond to the consumer at the price presented by the victim plus his adequate profits, and if the consumer is unable to sell it to the consumer, it appears that the defendant had intended to return it to the victim who is the original owner, unless there is any circumstance or intention that the defendant should continue to hold it, and the purpose of the conversation with the victim at the time is to know the criteria for determining the consumer's selling price guaranteed by the defendant's adequate profits, and to determine that the defendant tried to lower the consumer's selling price that the victim wants to sell to the consumer with a view to easily expressing the consumer's intention. The defendant's act of delivering Damond was also considered to have provided the defendant with the opportunity to offer the Damond to the consumer, which is the object of sale.

(4) If the intentions and factual relations of the Defendant and the victim who are inferred in the transaction practices are as seen above, the Defendant and the victim at the time receive the instant multimond in order to secure customers without setting the customers who have come to the Defendant, or to sell the goods of the victim in order to take profits each other in the above way, and it cannot be readily concluded that the sales contract was concluded as in the judgment below. Thus, if the above multimond was sold to the consumer, the Defendant shall pay the remaining amount to the victim, and if the above multimond did not sell it, it shall be identified that the above multimond was a legal relation to return it to the victim as originally.

(A) In a case where it is deemed that the sales contract was established when the defendant brought about a multimond from the victim, as shown in the judgment below, the defendant continued to hold the multimond and has the obligation to pay the price to the victim even if he could not sell the said multimond to the consumer, which is contrary to the purport of the above practice, starting from the purport of the above practice, i.e., the defendant, a merchant pursuing profits, has lost an opportunity to purchase the multimond in lieu of the victim, and the defendant, a merchant pursuing profits, has lost an opportunity to purchase the multimond by a multimond wholesaler in lieu of the victim, has paid the multimond price and received the management of the fund, and is contrary to the intention to promote mutual convenience.

(5) However, according to the victim's statement, the defendant did not pay the above Damond price even after a considerable period of time, and the defendant did not return the said Damond because it did not return it, and the defendant denied the fact that he brought about the Damond upon the victim's request for its return and refused its return. If the defendant brings about the Damond from the victim, the defendant is in the position of "the person who keeps another's property" in the crime of embezzlement, and as seen above, the defendant is in the position of "the person who takes another's property" in the crime of embezzlement, so long as the defendant denies the fact that he received the Damond from the victim, the defendant's intention of illegal acquisition of the Damond's above Damond from the outside.

C. If so, the court below should have deliberated on the following determination as to whether the defendant did not have the status of "a person who takes custody of another's property" in the crime of embezzlement even if the contract was concluded, as shown in the facts charged, even though the defendant brought a tea to the victim, as long as the contract was concluded, the defendant did not have the status of "a person who takes custody of another's property" in the crime of embezzlement, whether the defendant and the victim had the practice of "adomond" between the defendant and the victim, whether there was a practice of "adomond", the contents of the practice, and whether the above multimon transaction between the defendant

Ultimately, the court below erred in the misapprehension of legal principles as to embezzlement or incomplete deliberation, and such illegality has influenced the conclusion of the judgment.

The ground of appeal pointing this out is with merit, under the purport that the ownership of the Damond in this case is still attributed to the victim.

4. Therefore, without examining the remaining grounds of appeal, the judgment of the court below is reversed, and the case is remanded to the court below 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 Song Jin-hun (Presiding Justice)