[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 time when crimes violating Article 2 (2) of the Illegal Check Control Act are established

[1] The amount of money received by a person delegated with administrative affairs involving the receipt and receipt of money from a third party for the delegating person based on such act is identical to the money that has been entrusted for the delegating person only with the purpose or purpose, barring any special circumstance otherwise, it shall be deemed that the delegated person falls under the ownership of the delegating person simultaneously with the receipt, and the delegated person shall be deemed to

[2] The crime of violation of Article 2 (2) of the Illegal Check Control Act is established when the issuer issues a check, predicting that the crime will not be paid on the date of presentment due to the shortage of deposits. The crime is not established when the holder of the check presents a supplementary document stating the date of issuance and the payment of the check is refused on the date of presentment.

[1] Article 355 (1) of the Criminal Code / [2] Article 2 (2) of the Illegal Check Control Act

[1] Supreme Court Decision 95Do1923 delivered on November 24, 1995 (Gong1996Sang, 302), Supreme Court Decision 96Do106 delivered on June 14, 1996 (Gong1996Ha, 2277), Supreme Court Decision 96Do3155 delivered on March 28, 1997 (Gong1997Sang, 1295), Supreme Court Decision 97Do3057 delivered on April 10, 1998 (Gong1998Sang, 1399), Supreme Court Decision 2003Do1741 delivered on June 24, 2003 (Gong203Ha, 1652) / [2] Supreme Court Decision 97Do1989 delivered on March 16, 198 (Gong1989 delivered on April 19, 199) 98.

Defendant

Prosecutor

Changwon District Court Decision 2002No2399 delivered on May 27, 2003

Of the judgment below, the part of the embezzlement against the victim Kim Jong-tae is reversed, and that part of the case is remanded to the Changwon District Court Panel Division. The remaining appeals are dismissed.

1. As to the embezzlement against the victim Kim Jong-tae

A. According to the reasoning of the judgment below, the court below found that the above non-indicted 1 corporation 1 (hereinafter referred to as the "non-indicted 1 corporation") was the representative director, and the above non-indicted 2 corporation 1 was not guilty of the sale price of the above non-indicted 1 corporation 20, and the non-indicted 1 corporation's non-indicted 20 and the defendant was not guilty of the sale price of the above non-indicted 200, 100, 200, 100, 200, 300, 100, 300, 100, 1000, 100, 100, 100, 100, 1000, 100, 100, 200, 100, 100,000, 10,000,000,000 won, and 10,000,000,00 won.

B. Money received from a third party for the delegating's act is the same as money received for the delegating's purpose or purpose, and unless there are any special circumstances otherwise, the delegating person belongs to the delegating's ownership at the same time, and the delegating person is in the custody relationship for the delegating person (see Supreme Court Decision 95Do1923, Nov. 24, 1995). Even according to the court below's approval, the defendant received a request for the sale of the above apartment from Kim Sung who has the de facto right to dispose of the above apartment, and then received the above apartment after selling it. Thus, the above apartment sale price belongs to the ownership of Kim Sung-tae, and the defendant is in the custody relationship for Kim Tae-tae. Thus, if the defendant arbitrarily consumes the sale price, the crime of embezzlement is established, and thereafter, the defendant's intent of embezzlement or acquisition is not established on the ground that the above defendant paid the amount corresponding to the purchase price to Kim Sung-tae Kim-tae, etc.

Nevertheless, the court below determined that it cannot be readily concluded that the defendant had a criminal intent to embezzled the sales price of the above apartment or had an intent to illegally acquire it, and found the defendant not guilty of this part of the facts charged constitutes an unlawful act which affected the conclusion of the judgment by misunderstanding the legal principles as to the establishment of embezzlement, the criminal intent of embezzlement, or the intent of unlawful acquisition. Thus, the ground of appeal pointing this out has merit.

2. As to the embezzlement part of the victim's prostitution

As to the embezzlement of KRW 12,00,000 that the Defendant is obligated to pay to the victim leaple, the Defendant did not state the grounds of appeal in the instant petition of appeal, nor did the appellate brief have been filed within a lawful period.

3. On the violation of the Control of Illegal Check Control Act

The crime of violation of Article 2 (2) of the Illegal Check Control Act is established at the time when the drawer issues a check, predicting the occurrence of the result that the check will not be paid on the date of presentation due to the shortage of deposits, and the check holder presents a supplementary statement to the date of issuance, and the check is not established when the check holder refuses to pay the check on the date of presentation (see Supreme Court Decisions 85Do2640, Mar. 11, 1986; 95Do2114, Mar. 8, 1996, etc.).

In this regard, it is reasonable that the court below affirmed the judgment of the court of first instance which rendered a acquittal as it judged that the statute of limitations for this part of the facts charged falls under the case where the statute of limitations has expired, and there is no error of law by misapprehending the legal principles as to the starting point of the statute of limitations for a violation of Article 2 (2) of the Illegal Check Control Act

4. Conclusion

Therefore, the part of the judgment of the court below regarding embezzlement against the victim Kim Jong-tae shall be reversed, and that part of the case shall be remanded to the court below for a new trial and determination. The remaining appeal shall be dismissed. It is so decided as per Disposition by the assent of all participating Justices.

Justices Shin Hyun-chul (Presiding Justice)