Where a real estate purchaser provided the subject matter of sale as security to pay the purchase price borrowed in money, but he/she arbitrarily consumed part of the borrowed amount, whether embezzlement is established (negative)

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

[Plaintiff-Appellant] Plaintiff 1 and 1 other (Law Firm Gyeong, Attorneys Park Jae-soo et al., Counsel for plaintiff-appellant)

Defendant

Prosecutor

Busan District Court Decision 2005No923 Decided June 16, 2005

The appeal is dismissed.

When the buyer of a real estate borrows money by taking the object of the sale as security before the full payment of the purchase-price, while the part of the borrowed amount between the seller and the seller is agreed to give priority to the seller at the purchase-price and then borrowed money from the seller and then consumed the whole amount at his discretion, the above agreement between the seller and the buyer merely stipulates a payment method of the remaining purchase-price. Thus, the buyer cannot be deemed to be in the position of preserving the borrowed money by managing the object of the sale or providing security for the seller until the full payment of the purchase-price is made. Even if the buyer did not pay part of the borrowed amount to the seller, it is merely a default under civil law and is not established for embezzlement (see Supreme Court Decision 83Do1420, Mar. 24, 1987)

According to the adopted evidence, the court below concluded a sales contract on July 21, 1998 on the ground that the defendant would purchase the real estate of this case from the victim of this case with a 380 million won price as the purchaser, and that he would take over the loan obligation of 195 million won to the agricultural cooperative with a first priority right on the real estate of this case, and agreed to receive the remainder down payment and remaining payment from the non-indicted 2 community credit cooperative with an auditor as security and pay it to the victim. The defendant received documents necessary for the establishment of the right to collateral security from the victim of this case on July 21, 1998 on the same day and on the 24th of the same month, the court below did not err in the misapprehension of the legal principles as to the payment method of the loan of this case to the non-indicted 3 under the name of the defendant's wife, who is a member of the safe credit cooperative, for the purpose of selling and selling the real estate of this case, and it did not constitute an unlawful payment method of the remaining money to the non-indicted 30 million won.

Supreme Court Decision 96Do106 delivered on June 14, 1996, which is cited by the prosecutor in the ground of appeal, differs from the case and it is not appropriate to invoke it in this case.

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

Justices Kim Young-ran (Presiding Justice)