A trustee of co-ownership and a custodian of real estate in embezzlement

Unlike movable property, a person who keeps real estate in embezzlement shall be determined on the basis of whether the person has the ability to dispose of the real estate effectively to a third party, rather than on the basis of possession of the real estate. A person who has completed the registration of ownership transfer through a title trust with respect to a part of the land's share has the ability to dispose of the land effectively to a third party within the extent of his/her share, and is in the position of a person who keeps the real estate.

Article 355(1) of the Criminal Act

Supreme Court Decision 86Do1607 delivered on February 10, 1987, Supreme Court Decision 87Do1690 Delivered on December 8, 1987

Defendant

Defendant

Attorney Ji-hun et al.

Seoul Criminal Court Decision 88No4010 decided Jun. 1, 1989

The appeal is dismissed.

The grounds of appeal No. 1 are examined.

According to the timely evidence of the judgment of the court below and the judgment of the court of first instance cited by the court below, the facts charged in this case can be recognized, and there is no error in finding any error in violation of the

The grounds of appeal (2) are examined.

Unlike in the case of movable property, a person who keeps real estate in embezzlement shall be determined on the basis of whether the person has the ability to dispose of the real estate effectively to a third party, rather than on the basis of possession of the movable property. A person who has completed a registration of ownership transfer under a title trust with respect to a part of the land's share has the ability to dispose of the land effectively to a third party within the extent of his share, and is in the position of the person who keeps the real estate (see Supreme Court Decision 86Do1607, Feb. 10, 1987; Supreme Court Decision 87Do1690, Dec. 8, 1987; 87Do1690, Dec. 8, 1987). Thus, the court below's decision that the defendant refused the registration of ownership transfer as a title trustee of the co-owned share in this case by refusing to obtain it with the intention of unlawful acquisition, and thus has no errors in the misapprehension of legal principles of embezzlement, such as the theory

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

Justices Park Jong-dong (Presiding Justice)