[1] Whether embezzlement is established in a case where a person who is delegated to handle affairs involving the receipt of money has arbitrarily appropriated the money received from a third party for the delegating person's claim against his/her delegating person (negative with qualification)

[2] The case holding that if the defendant refused to return money received from the proceeds of sale contrary to the purpose of the entrustment of the business concerning the sale of buildings with the receipt of money and the distribution of the proceeds of sale, and disposed of money to the victim under the pretext that it would be appropriated for the repayment of his claim against the victim, the intention of unlawful acquisition is recognized

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

[1] Supreme Court Decision 70Do2387 delivered on December 29, 1970, Supreme Court Decision 2001Do3100 Delivered on September 10, 2002, Supreme Court Decision 2003Do394 Delivered on September 26, 2003 (Gong2003Ha, 2137) Supreme Court Decision 2004Do134 Delivered on March 12, 2004 (Gong2004Sang, 675)

Defendant

Prosecutor

Ulsan District Court Decision 2004No1283 decided May 13, 2005

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

1. According to the reasoning of the judgment below, if the defendant sold 25 million won to the victim non-indicted 1 and 2 buildings located in the victim non-indicted 1 and 5 million won of the defendant's investment, and sold 15 million won of the defendant's investment money and 5 million won of the non-indicted 2's investment money to the non-indicted 2 after the defendant agreed to jointly distribute the remainder, and received 25 million won of the above 4 buildings from the non-indicted 2, the defendant's investment money and 25 million won of the above non-indicted 2's investment money after deducting 15 million won of the defendant's investment money and 5 million won of the above non-indicted 2's introduction money and 2.5 million won of the above non-indicted 2's investment money were kept for the victim's living expenses, etc., the court below acknowledged that it was difficult for the defendant to receive 15 million won of the defendant's investment money from the non-indicted 1 and 5 million won of this case's investment money.

2. However, as the money received by a person delegated with the affairs related to the receipt of money from a third party for the delegating person by such act is similar to the money received for the delegating person, the delegated person shall be deemed to have a relationship with the mandator's possession at the same time, barring any special circumstances. The delegated person shall also be deemed to have a relationship with the delegating person in the custody of the delegated person, barring any special circumstances. The money received by the delegated person with the affairs related to the receipt of money from a third party for the delegating person based on such act is not used for the purpose or purpose of the delegation, as in the case of the money entrusted with the affairs related to the receipt of money from a third party for the delegating person, and the offset appropriation of the defendant's claim against the delegating person without using it in accordance with the purport of the delegation. Unless there is any special agreement that the delegated person has decided to offset or settle, it constitutes embezzlement (see Supreme Court Decisions 70Do2387, Dec. 29, 190; 2001Do3100, Sept. 10, 20034).

Examining the record in light of the above legal principles, it is not clear whether the victim bears the obligation to pay 15 million won to the defendant for the introduction fee, as well as not only the fact that the defendant agreed with the victim by appropriating 2.5 million won for the repayment of the defendant's claim for the introduction fee of the defendant's claim, but also there was no separate agreement with the victim to use the above proceeds for other specific purposes or purposes. Thus, if the defendant disposed of the proceeds as one of the proceeds received from the sale of the 4th unit building accompanied by the receipt of money and the sale proceeds against the purpose of the entrustment of the business concerning the sale of the 4 unit building and the distribution of the proceeds, 2.5 million won to be returned to the victim among the proceeds received from the sale proceeds in violation of the purpose of the entrustment of the business concerning the distribution of the proceeds, it cannot be said that there is a justifiable reason for the defendant's refusal of voluntary consumption or return.

Nevertheless, the lower court determined that it cannot be readily determined that there was an intention of embezzlement of KRW 2.5 million, and found the Defendant not guilty, constitutes an unlawful act that affected the conclusion of the judgment by misapprehending the legal doctrine as to the intent of embezzlement or by misapprehending the intent of unlawful acquisition. Therefore, the allegation in the grounds of appeal assigning this error is with merit.

3. Therefore, the judgment of the court below is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Han-gu (Presiding Justice)