[1] Whether embezzlement is established in a case where a trustee disposes of real estate at will in a so-called title trust without intermediate omission registration (affirmative)

[2] The case holding that where the trustee consumeds part of the land expropriation compensation for a part of the real estate entrusted to the trustee and refuses to return the remainder of the real estate not yet expropriated, the refusal to return the money constitutes a separate embezzlement, which is not an act subsequent to the non-criminal act of embezzlement

[1] Where a person who purchased real estate from his/her owner did not register the ownership transfer under his/her name and did not register the ownership transfer to a third party immediately from the seller pursuant to the title trust agreement entered into with the third party, if the third party disposes of the real estate trusted under his/her name under such title trust agreement with him/her at will, the crime of embezzlement is established against the truster, and where the title trust was made before the enforcement of the Act on the Registration of Real Estate under Actual Titleholder’s Name, and the disposal was made after the title trust agreement and the change in real rights by the registration made under such agreement became null and void, it does not change because

[2] The case holding that where a title trustee consumeds part of the land expropriation compensation for part of the real estate which was entrusted to the trustee, and refuses to return all of the remaining real estate which was not expropriated, it cannot be deemed that there was an act of objectively expressing the intention of unlawful acquisition of the entire real estate through the consumption of part of the compensation for expropriation which was received with respect to part of the real estate, and thus, it cannot be deemed that there was an act of objectively expressing the intention of unlawful acquisition of the entire real estate, and thus, refusal to return all of the remaining real estate which was not expropriated after the crime of embezzlement was established

[1] Article 35(1) of the Criminal Act, Article 2 subparag. 1, Article 3(1), and Article 4(1) and (2) of the Act on the Registration of Real Estate under Actual Titleholder’s Name / [2] Article 355(1) of the Criminal Act

[1] Supreme Court Decision 99Do3170 delivered on October 12, 1999 (Gong1999Ha, 2384) Supreme Court Decision 99Do5227 delivered on February 22, 2000 (Gong2000Sang, 884) Supreme Court Decision 98Do4347 delivered on March 24, 200 (Gong200Sang, 1101)

Defendant

Defendant

Daejeon District Court Decision 99No2561 delivered on July 7, 2000

The appeal is dismissed.

We examine the grounds of appeal.

In cases where a person who purchased real estate, without completing the registration of ownership transfer under his/her name, has made the registration of ownership transfer from the seller to a third party immediately omitted from the seller pursuant to a title trust agreement entered into with the third party, if the third party arbitrarily disposes of the real estate trusted under his/her name pursuant to such title trust agreement, the crime of embezzlement is established against the truster. The fact that the title trust was made prior to the enforcement of the Act on the Registration of Real Estate under Actual Titleholder’s Name, and that the disposal was made after the title trust agreement and the change in real rights by the registration made pursuant to such agreement was invalidated, is not different,

According to the reasoning of the judgment below, as to the facts charged of this case where, according to a title trust agreement with the Gu Resident Award, the defendant embezzled the above amount of KRW 1,491 square meters prior to the distribution in official city, purchased from the Non-Indicted Person’s name, on January 6, 1992, he kept the ownership transfer registration immediately in the future, and ① embezzlement of KRW 5,370,000 from the land expropriation compensation of KRW 19,370,000, which was part of the above 70 square meters prior to October 196, and ② the defendant refused to return the above ownership from the Gu Resident’s Award on March 5, 1998 and embezzled the above amount of KRW 100,000,000 from the market price of the real estate, it is difficult to view that the defendant arbitrarily refused to return the real estate due to the lapse of the term of grace period under the Act on the Registration of Real Estate Actual Titleholder’s Name and thus, the defendant’s right to request the return of the real estate in his name is void.

In light of the records and the legal principles as seen earlier, the above fact-finding and decision of the court below is just and there is no error of law by mistake or misapprehension of legal principles due to violation of the rules of evidence.

In addition, it cannot be deemed that there was an act of objectively expressing the intent to acquire unlawful acquisition of the entire real estate after the Defendant consumed part of the compensation for expropriation which the Defendant received with respect to a part of the real estate of this case. Therefore, refusing to return the remaining real estate not expropriated after the crime of embezzlement is an infringement of new legal interests and thus cannot be deemed as an act of ex post facto embezzlement, and it cannot be deemed as an act of ex post facto embezzlement. Since Article 2 of the facts charged of this case also provides that the remaining real estate except the land expropriated is embezzled, the argument in the grounds of appeal on this point is without merit.

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

Justices Park Jae- Jae (Presiding Justice)