[1] The criteria for determining the status of custodian in the crime of embezzlement of real estate, and whether the nominal owner of the registration of transfer of ownership, whose cause is invalid, constitutes a person who keeps another’s property (negative)

[2] The case holding that the act of a person holding a title trust of the forest's shares from a truster who is entirely unrelated to the real owner of the forest cannot be deemed as embezzlement of the forest's shares against the truster or the owner

[1] The principal agent of embezzlement shall be a custodian of another's property, and the custody here means the possession of property through a consignment relationship. Thus, in order to constitute embezzlement, the custodian of the property must have a legal or de facto consignment relationship with the owner of the property (or other principal authority). In addition, in the case of real estate, the custodian's status shall not be determined on the basis of possession, but on the basis of the right to dispose of the real estate effectively to a third party. Thus, the nominal owner of ownership transfer registration, which is void as the cause of embezzlement, cannot be deemed as a person who keeps another's property, the principal agent of embezzlement.

[2] In a case where a trustee, regardless of the true owner of forest land, has arbitrarily disposed of the shares held in a trust from a truster under a title trust and completed a transfer registration, the case holding that the act of disposal cannot be deemed as embezzlement against the truster or the owner of forest land on the ground that the owner and the trustee cannot be deemed as having established the legal or de facto consignment relationship with respect to the said shares in forest land, and that the trustee is merely the title holder of the registration invalidation of the reason for invalidation of the loan, and is not able to dispose of the said shares in forest land effectively to a third party

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

[1] Supreme Court Decision 86Do1607 delivered on February 10, 1987 (Gong1987, 477) Supreme Court Decision 88Do1368 delivered on February 28, 1989 (Gong1989, 563) Supreme Court Decision 2005Do2413 Delivered on June 24, 2005 (Gong2005Ha, 1293) Supreme Court Decision 2003Do4828 Delivered on September 9, 2005

Defendant

Defendant

Seoul Western District Court Decision 2006No1225 Decided January 19, 2007

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

1. The judgment of the court below

In full view of the adopted evidence, the lower court found the Defendant guilty of the facts charged of the instant case that “The Defendant embezzled 1/4 shares of the instant forest, which was registered in the name of Nonindicted Party 1, under title trust with the victim and completed the registration of ownership transfer under the name of the Defendant, and kept in custody for the victim, by selling the said forest shares to Nonindicted Party 3, and by making a provisional registration with respect to the said forest shares by means of a pre-sale made in the name of Nonindicted Party 3.”

2. The judgment of this Court

However, we cannot accept such fact-finding and decision of the court below for the following reasons.

A. The crime of embezzlement under Article 355(1) of the Criminal Act is a crime where the custodian of another's property embezzled or refuses to return the property. The principal of embezzlement is the custodian of another's property, and the custody here refers to the possession of the property through a consignment relationship. Thus, in order to constitute embezzlement, the custodian of the property must have a legal or de facto trust relationship with the owner of the property (or any other principal right holder). (See Supreme Court Decisions 2005Do2413, Jun. 24, 2005; 2003Do4828, Sept. 9, 2005, etc.) In addition, in the case of real estate, the status of the custodian of the property is not based on the possession but on the ability to dispose of the property effectively to a third party. Thus, the title holder of the ownership transfer registration, which is invalid, shall not be deemed a person who keeps the property of another person, who is the principal of the crime of embezzlement, as the principal of the property.

B. In light of the records, the forest of this case was owned by Leewon-dong (a non-corporate association composed of 1 Dong-won and 2 Dong-dong residents), and the forest of this case was registered in title with the deceased and Nonindicted 4, who was represented by the Senior Citizens Association at the time of the time of 1948, and the ownership transfer registration was completed in the above deceased's joint name. After the above deceased's descendants disposed of the forest, each of the ownership registration, share transfer registration, and ownership transfer claim registration, etc., invalid as to the forest of this case, was completed consecutively after the above deceased's descendants disposed of the forest of this case, and the title holder of this case filed a lawsuit seeking cancellation of the registration (including each of the share transfer registration in the name of Nonindicted 2 and Defendant) against the title holder, and became final and conclusive.

Thus, the victim non-indicted 1 or the registered titleholder non-indicted 2 cannot be deemed as the owner of the above forest land's shares. The defendant cannot be deemed as the owner of the above forest land's shares regardless of the transfer registration under the name of the defendant. The legal or de facto trust relationship between the owner of the above forest land and the defendant cannot be deemed to have been established, and the defendant is merely the owner of the ownership transfer registration, which is null and void as the owner of the above forest land and does not have the right to dispose of the above forest shares effectively to a third party. In light of the above legal principles, the defendant's act identical to the facts charged cannot be deemed as embezzlement of the above forest's shares against the victim non-indicted 1 or against the owner of the above forest's shares against the non-indicted 1.

C. Nevertheless, the court below affirmed the judgment of the court of first instance which found the defendant guilty of the facts charged on the ground that the defendant's act of finding the fact that the shares in the forest of this case are the ownership of the victim non-indicted 1 and embezzlement of the above shares in the forest of this case as a person who has custody of the victim's above shares in the forest of this case. Thus, the court below erred by misapprehending the facts against the rules of evidence and misapprehending the legal principles on embezzlement,

3. Conclusion

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 Ji-hyung (Presiding Justice)