[1] Whether embezzlement is established in a case where a trustee disposes of real estate at will in a so-called middle omission registration title trust or third party registration title trust (affirmative)

[2] The case reversing the real estate title trust relationship, which is the premise of the judgment of the court below, based on the fact that the seller becomes aware of the fact of title trust in the student title trust, constitutes an intermediate omission registration type title trust or a three-party registered title trust

[1] The truster entered into a title trust agreement with the trustee, and the truster entered into a sales contract with the seller as the party to the sales contract. However, if the title trustee disposes of the nominal real estate share in the so-called middle omission registration type title trust or three-party registered title trust directly transferred from the seller to the trustee, the crime of embezzlement is established.

[2] The case reversing the real estate title trust relationship, which is the premise of the judgment of the court below, based on the fact that the seller becomes aware of the fact of title trust in the student title trust, constitutes an intermediate omission registration type title trust or a three-party registered title trust.

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

[1] Supreme Court Decision 99Do5227 delivered on February 22, 2000 (Gong2000Sang, 884) Supreme Court Decision 2000Do3463 Delivered on November 27, 2001 (Gong2002Sang, 220)

Defendant

Prosecutor

Changwon District Court Decision 2000No1292 delivered on October 23, 2001

The non-guilty portion of the judgment of the court below shall be reversed, and the case shall be remanded to the Changwon District Court Panel Division.

1. Facts charged;

Of the facts charged in the instant case, the Defendant purchased the real estate as stated in its reasoning at around October 1997, each of the 10 million won paid by the victim Kim Jong-chul, the Ulmun, the amount of KRW 30 million paid by the Defendant, and KRW 50 million in total, and held it jointly, and the registration shall be held in the name of the Defendant, but the registration shall be held in the name of the Defendant, and the registration shall be made in the name of the Defendant on April 8, 1998, and the registration of ownership transfer has been made for the victims on or around May 23, 198 without the consent of the victims, while the registration was made for the establishment of a collateral security on or around September 18, 198, and the registration of establishment of a collateral security was completed on or around September 26, 199; and the registration of establishment of a collateral security made on or around August 26, 199.

2. The judgment of the court below

According to the evidence established by the court below, since the defendant and the victims purchased the above real estate under the name of the defendant and the victims, the purchaser entered into a sales contract on the above real estate under the name of the defendant, and completed the registration of ownership transfer under the sales contract, it is presumed that the seller becomes aware of the fact of title trust among the strong title trust, and in such a case, the agreement between the victims and the defendant is null and void pursuant to Article 4 (1) of the Act on the Registration of Real Estate under Actual Titleholder's Name, and the part on the victims' co-ownership share in the registration of ownership transfer under the name of the defendant cannot be deemed as effective acquisition of ownership since the agreement between the victims was concluded under the name of the defendant and the victims, and it is hard to view that the defendant did not have any legal relationship with the victims as to the above real estate under the name of the victim's ownership transfer since the agreement between the defendant and the victims was concluded under the name of the victim, and thus, it is difficult to view that the defendant did not have any legal relation with the above real estate under the title trust agreement.

3. The judgment of this Court

The lower court: (a) found that the Defendant and the victims agreed to the name of the buyer solely in the name of the Defendant, and concluded a sales contract on the instant real estate with the Seodaemun-gu having knowledge of the aforementioned circumstances; and (b) denied the Defendant’s establishment of embezzlement on the premise that the title trust in the instant case constitutes a case where the seller becomes aware of the fact of the title trust in the contract under the strong title trust; (c) however, the lower court’

The title trust in the lecture refers to the case where the truster entered into a title trust agreement with the trustee, and the trustee entered into a sales contract with the seller, and then the trustee registers the title trust in the future. Even if examining the records, it cannot be deemed that the defendant was the purchaser even in the instant case’s share in the real estate.

Rather, according to the evidence employed by the court below, although the above real estate was owned by the Seocho-gu, but the Cho Young-gu was awarded a contract on July 12, 1996 and completed the registration of ownership transfer on August 21 of the same year, so that he agreed to re-purchase the above real estate with Cho Young-gu, and paid 10 million won to each of the above Cho Young-gu, through Kim Young-sung, through which 0 million won was loaned to each of the above 1,00 won and 0 million won was paid to the defendant Cho Young-gu, and that the above 00 won was not repaid during the process of borrowing money from Kim Young-gu, Kim Young-gu, and that if the above 00 won was not repaid until the due date for payment of the above money, the above 00 won was not repaid to the defendant Cho Young-gu, and that the above 50 million won was not repaid to the defendant Kim Young-chul, and that the above 100 million won was also an investment in the above real estate.

Therefore, the title trust relationship between two persons, the truster, and the defendant, the trustee, who are the trustee, with respect to the shares in the Kim Jong-chul, shall enter into a title trust agreement with the trustee, and the truster shall enter into the contract with the seller as the party to the contract, but the so-called middle omission type title trust or three-party registered title trust, which is directly transferred from the seller to the truster, shall be deemed to fall under the so-called middle title trust or three-party registered title trust, and if the defendant, the title trustee, arbitrarily disposed of the shares in the real estate held in the title trust relationship, then the crime of embezzlement shall be established (see Supreme Court Decision 2000Do3463, Nov.

Nevertheless, the court below found the defendant not guilty on the ground that the fact-finding on the process of the title trust in this case was based on the premise that the relationship between the remaining defendant and the victims constituted a case where the seller becomes aware of the fact of the title trust in the student contract title trust. In so doing, the court below erred by misapprehending the legal principles on the title trust as prescribed by the Act on the Registration of Real Estate under Actual Titleholder's Name or failing to exhaust all necessary deliberations, and thereby affecting the conclusion of

4. Therefore, the non-guilty portion of the judgment of the court below is reversed (the subject of embezzlement of the defendant among the facts charged in this case is all the real estate of this case or it is not clear whether the victim is the whole real estate of this case or the victim's share. In case of the former, since the defendant's share of real estate was owned domestically and externally, and there is no entrustment relationship between the victims and the victims, even if the defendant disposed of it at will, the crime of embezzlement is not established, and this part of the judgment is not guilty. However, this part of the judgment is also reversed as long as the defendant reversed the embezzlement point of the victims' share of the crime with this part, and the case is remanded to the court below

Justices Kim Ji-dam (Presiding Justice)