[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 meaning of the intent of unlawful acquisition in embezzlement

[3] The case holding that the intent of unlawful acquisition is recognized on the ground that the refusal of return cannot be deemed as a justifiable ground

[4] In a case where cash and cashier's checks, which are stolen goods, were deposited in a financial institution and withdrawn in cash, whether the withdrawn cash is lost (negative)

[1] The amount of money received by a person delegated with administrative affairs involving the receipt of money from a third party for the delegating person based on such act belongs to the delegating person’s possession at the same time as the money was received by the delegating person, barring any special circumstance otherwise, and the delegated person shall be deemed to have the relation of keeping the money in custody for the delegating person.

[2] The intent of unlawful acquisition in the crime of embezzlement refers to the intent that the custodian of another's property disposes of the property as his own property without authority contrary to the intent of the entrustment for his own interest or for the benefit of a third party. Thus, even if the return was refused, if there is a justifiable reason to refuse the return, the intent of unlawful acquisition shall not be deemed to exist.

[3] The case holding that if the defendant refused to return the money received as a sales contract of real estate in violation of the purpose of the entrustment of the business concerning the sale of real estate with the receipt and receipt of money, and disposed of the money as his own possession, he did not have any justifiable reason for refusing the return of the above sales contract, and thus, the intention of illegal acquisition is recognized

[4] The stolen property refers to the stolen property itself, and the disposal price of the stolen property loses stolen property. However, in light of the fact that money has a high level of substitution, which can be easily exchanged with another kind of currency because it has no particular meaning and the monetary value indicated by the amount is distributed with the meaning of transaction in transactions, it is reasonable to view that in a case where stolen cash is stored in a financial institution in the form of a deposit, and withdrawal of the same amount of cash is made in the form of a deposit, the cash withdrawn in the nature of the deposit contract is lost, but there is no change in the monetary value indicated by the amount, and therefore, the cash withdrawn in the nature of the deposit contract is maintained as it is. The cashier's checks also have the function of immediately receiving the face value of the cash and are treated as cash in the same manner as cash in transactions.

[1] Article 35 (1) of the Criminal Code, Article 3 (1) of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes / [2] Article 355 (1) of the Criminal Code, Article 3 (1) of the Aggravated Punishment, etc. of Specific Economic Crimes / [3] Article 355 (1) of the Criminal Code, Article 3 (1) of the Aggravated Punishment, etc.

[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 96Do315 delivered on March 28, 1997 (Gong1997Sang, 1295), Supreme Court Decision 97Do3057 delivered on April 10, 1998 (Gong1998Sang, 13999), Supreme Court Decision 2003Do1741 delivered on June 24, 2003 (Gong203Ha, 1652), Supreme Court Decision 209Do38989 delivered on September 26, 2003 (Gong20989Do37989 delivered on September 24, 200)

Defendant 1 and one other

Defendants

Attorneys Kim Hong-sung et al.

Seoul High Court Decision 2003No2507 delivered on December 23, 2003

All appeals are dismissed. As to Defendant 1, 60 days out of the number of detention days after the appeal shall be included in the original sentence.

1. The money received by a person delegated with the affairs related to receipt of money from a third person for the delegating person based on the act belongs to the delegating person's ownership at the same time with the receipt of the money, barring any special circumstance like the money entrusted for the delegating person, and the delegated person shall be deemed to have the relation of keeping the money for the delegating person (see Supreme Court Decisions 95Do1923, Nov. 24, 1995; 2003Do1741, Jun. 24, 2003; 2003Do1741, Jun. 24, 200). The intent of unlawful acquisition in embezzlement refers to the intention of disposing of the property without the authority of the person who keeps the property of another person against the purpose of the entrustment for his own or the third person's interest without the authority. Thus, even if the person refused to return it, if there is a justifiable reason to refuse to return it, it cannot be deemed that the delegated person has an intention of unlawful acquisition (see, e.g., Supreme Court Decision 86Do24898.

The court below, based on the adopted evidence, found that Defendant 1 unilaterally refused to return the above amount to the victim while concluding a sales contract with the delegation of KRW 500 million from this No. 1, which is the representative of the victim of this case, by the delegation of this No. 1, who is the representative of the victim of this case, and being in custody with the down payment. On the other hand, the Defendants demanded this No. 1, who is the representative of the victim of this case, to compensate for damages caused by the failure of charnel house business and purchase and sale of the real estate of this case under this No. 500,000,000,000 won, and on the other hand, agreed that the Defendants would be entitled to receive KRW 500,000,000 from this No. 50,000,000,000,000,000,000 won, and the above act of Defendant 1 received KRW 500,000,000,00,00.

First, examining the adopted evidence of the judgment of the court of first instance maintained by the court below and the court of first instance in light of the records, it is proper that the court below rejected the return of the real estate sales contract amounting to 500 million won under the pretext of appropriating the above defendant's claim for the payment of the claims by the above defendant without the consent or consent of this norm, which is the representative of the victim, and that the defendant 2 was aware of such circumstances, and there

Furthermore, according to the facts and records duly established by the court below, Defendant 1, who claimed that he had a claim of KRW 500 million against the victim under an agreement with this Norm, the representative of the victim prior to being entrusted with the sale of the real estate in this case, had already been claimed before being entrusted with the sale of the real estate in this case, did not have agreed that the amount of KRW 500 million should be appropriated for the repayment of the claim. Rather, Defendant 1 was demanded to immediately deposit the amount of KRW 500 million in the bank account under the name of the victim, and there was no separate agreement to use the amount for other specific purposes or purposes. Thus, among the delegation agreements with regard to the sale of the real estate in this case involving the receipt of money, the money received with the purchase price of the real estate in this case shall be deemed to have been included in the agreement to return it to the victim. Nevertheless, as long as Defendant 1 rejected the return of the amount of KRW 500 million in its possession without authority, Defendant 1 did not have any justifiable reason for refusing to return the above amount of KRW 500 million.

In the same purport, the court below is justified in maintaining the judgment of the court of first instance which found Defendant 1 guilty of all the facts constituting the crime of this case, and there is no violation of law by misapprehending the legal principles as to the intention of unlawful acquisition or the acquisition of stolen property.

2. In addition, the stolen property refers to the stolen property acquired due to the property crime, and the disposal price of the stolen property loses stolen property. However, in light of the fact that money has a high level of substitution and can be easily exchanged with another kind of currency because it has no particular meaning and the monetary value indicated by the amount is distributed in transactions with the meaning of transaction, it is reasonable to view that in the event that stolen cash is stored in a financial institution in the form of deposit and withdraws the same amount of cash in order to return the cash, the cash withdrawn due to the nature of the deposit contract is lost the original cash and the physical identity, but there is no change in the amount of the monetary value indicated by the amount, and therefore the cashier's checks also have the same function as cash in transactions with the function of immediately receiving the face value of cash (see Supreme Court Decision 98Do2579 delivered on March 10, 200), Defendant 2’s allegation in the grounds of appeal on this point is not acceptable (see Supreme Court Decision 98Do2579 delivered on this day).

3. Therefore, all appeals are dismissed, and part of the detention days after the appeal shall be included in the original sentence against Defendant 1. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Yoon Jae-chul (Presiding Justice)