[1] The relationship of attribution of money that a person entrusted with the affairs related to the receipt of money receives from a third party for the delegating person based on the act (=a delegating person)

[2] The method of determining whether the money received by a person delegated with the affairs related to receipt of money is received for the delegating under the delegation of the affairs related to administrative affairs

[1] The crime of embezzlement is a crime punishing a person who keeps another's property to embezzled such property. Thus, in order to be established, the property subject to embezzlement is required to be owned by another person, and the person entrusted with administrative affairs involving receipt of money from a third party on behalf of the delegating person due to such act shall be deemed to belong to the delegating person's possession at the same time as that of the entrusted money, unless there are special circumstances like the entrusted money, and the delegated person shall be deemed to have the relation of custody for the delegating person.

[2] Whether the money received for a delegating person upon delegation of the performance of duties ought to be determined by the nature of the legal relationship causing receipt, and by the intent of the parties. If there are circumstances where it is difficult to readily determine the amount to be returned to the delegating person, such as where separate bonds and debts exist and the settlement procedures for the money received by the delegating person exist, it shall not be readily concluded that there was an agreement under which the money received should be reverted to the delegating person as owned by the delegating person.

[1] Article 355 (1) of the Criminal Code / [2] Article 355 (1) of the Criminal Code

[1] Supreme Court Decision 2004Do134 decided Mar. 12, 2004 (Gong2004Sang, 675)

Defendant

Defendant

Seoul Central District Court Decision 2005No372 Decided May 12, 2005

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

1. The court below found the defendant guilty of the defendant's embezzlement of the amount of non-indicted 3 company and non-indicted 1's non-indicted 2 company's non-indicted 4 company (hereinafter "non-indicted 4 company") after changing the name of the contracting party to the lighting fixture in this case to the non-indicted 3 company (hereinafter "non-indicted 2 company")'s management from the non-indicted 3 company (hereinafter "non-indicted 3 company") and directly producing the remaining lighting fixtures in accordance with the supply contract of this case and supplying the remaining lighting fixtures to the non-indicted 2 company, and finally settling the amount of the supply, the non-indicted 3 company and non-indicted 1's non-indicted 1 company's non-indicted 3 company's non-indicted 1's non-indicted 3 company's non-indicted 3 company's non-indicted 3 company's non-indicted 4 company's non-indicted 4 company's non-indicted 2 company's non-indicted 2 company's non-indicted 3 company's non-indicted 13 company's non-indicted.

2. However, we cannot accept the judgment of the court below that the defendant is in the position of keeping the victims' settlement funds for the following reasons.

Since embezzlement is a crime punishing a person who keeps another's property to embezzled such property, in order to constitute embezzlement, the property subject to embezzlement is required to be owned by another person. If a person entrusted with administrative affairs involving receipt of money from a third party on behalf of the delegating person due to the act is the same as the money entrusted for the purpose or use only, barring any special circumstance, the money received from the delegating person shall belong to the delegating person at the same time as the money entrusted for the delegating person, and the delegated person shall be deemed to have the relation of custody for the delegating person (see Supreme Court Decision 2004Do134, Mar. 12, 2004, etc.), but whether the money received for the delegating person upon delegation of administrative affairs shall be determined by the nature of the legal relation causing receipt and the intent of the parties. If there is any circumstance that can not easily determine the amount to be returned to the delegating person, such as the settlement procedure for the money received by a separate bond and debt between the parties, it shall not be readily concluded that there was an agreement to vest the delegating person's ownership in such case.

According to the records, Nonindicted Co. 1 entered into the instant lighting fixture supply contract with Nonindicted Co. 2 in the name of Nonindicted Co. 3, and supplied Nonindicted Co. 3 or the non-indicted Co. 2 with the item and number of fixtures individually produced by him until Jun. 28, 2000, the creditors of Nonindicted Co. 3 changed the name of the supplier of the instant supply contract from Nonindicted Co. 3 to Nonindicted Co. 4 in order to avoid any defect in the seizure of the instant supply price claim against Nonindicted Co. 2, 2000. However, it was no longer possible for Nonindicted Co. 2 to produce and deliver the lighting fixtures to Nonindicted Co. 4 in the name of the victims. In light of the fact that Nonindicted Co. 1 did not demand the Defendant to implement the instant supply contract, it was reasonable for Nonindicted Co. 4 to have received the remaining amount of money from Nonindicted Co. 1 and the remaining amount of money supplied to Nonindicted Co. 4 in exchange for the supply of parts or parts for the supply of lighting fixtures from Nonindicted Co. 1 and the supplier. 4.

If there are these circumstances, it cannot be deemed that the defendant and the non-indicted 1 agreed that the amount of the supplied goods received by the defendant from the non-indicted 2 should be attributed to the victims immediately. Rather, the amount of supplied goods acquired by the non-indicted 4 company's own name shall be attributed to the whole amount, and the non-indicted 4 company shall be deemed to have been liable to pay to the victims as much as the remaining amount through the settlement process, such as determining the amount of supplied goods of the victims and deducting the amount paid on behalf of the supplier of parts, so the defendant's arbitrary use of the supplied goods is not only

Nevertheless, the court below did not examine and confirm whether the amount of the victims' price of supply among the price of supply received by the defendant and non-indicted 1 was directly attributed to the victims, and judged that the amount of settlement in this case being kept by the defendant alone was owned by the victims. Thus, the court below erred by failing to exhaust all necessary deliberations or by misapprehending the legal principles on the property of others, which is the object of embezzlement, and such errors affected the conclusion of the judgment.

3. Therefore, the lower judgment is reversed, and the case is remanded to the lower court 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 Kim Young-ran (Presiding Justice)