The crime of embezzlement of the act that the real estate purchaser provided the object of sale as security and agreed to pay part of the borrowed money as the purchase price;

When the buyer of a real estate borrows money by taking the object of the sale as a security prior to 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 by the sale price and then borrowed money, and then consumed the whole amount at will, the above agreement between the seller and the buyer is merely a determination of the payment method of the remaining purchase price. Therefore, it cannot be deemed that the buyer is in a position to manage the object of the sale or to keep the borrowed money by providing security until the full payment of the purchase price is made. Thus, even if the buyer did not pay part of the borrowed amount to the seller, it is merely a non

Article 355(1) of the Criminal Act

Defendant 1 and one other

Defendants and Prosecutor (Defendant 1)

Attorney Kim Jong-hee

Seoul Criminal Court Decision 82No2971, 82No5761 delivered on April 21, 1983

Of the judgment of the court below, the part against Defendant 2 and the conviction against Defendant 1 are reversed, and the case is remanded to the Panel Division of the Seoul Criminal Court.

The prosecutor's appeal is dismissed.

1. We examine the Defendants’ grounds of appeal.

A. As to the Defendants’ fraud and incompetence of real estate business:

According to the judgment of the court below, the court below found the Defendants guilty of the following facts charged of fraud and false accusation based on the evidence adopted by the court below. In other words, although the Defendants conspired as married couple and did not intend to engage in house funeral in the dudial 19 June 19, 1978, the Defendants purchased the land and its ground houses jointly with the non-indicted 12-6, 12-7, Jongno-gu Kim Jae-dong, Jongno-gu, Seoul, and concluded that there were many profits from selling them, the court below received 22,520,000 won including the down payment, from September 28, 1978, and received 22,520,000 won in total as the fund for the same kind of business investment, and received it as above, and received it from the above Kim Jae-dong and received money as the above, and filed a complaint on September 9, 1980 with the Seoul District Public Prosecutor's Office.

On the other hand, the Defendants purchased the instant site and house in combination with the above Kim Jae-ap's investment funds, but they could not resell the said Kim Jae-ap's investment funds due to the government's measures of suppression of real estate speculation. Since the Defendants completed the registration of ownership transfer under Defendant 1's name, there is no intention to commit fraud as well as fraud. Therefore, the records show that the victims' Kim Jae-ap was the first trial witness and the Defendants were jointly investing in the same business and purchased the instant site and house in 27,00,000 won and completed the registration of ownership transfer under Defendant 1's name, and that the Defendants were not 10,000 won of the instant site and were 50,000 won of the instant site and were 10,000 won of the instant site and were 10,000 won of the instant site and 50,000 won of the instant site and were 50,500,000 won of the instant site and 500,000,00 won of the instant site statement.

Nevertheless, the court below's finding the Defendants guilty of the facts charged against the real estate business fraud, and on the premise of the finding, found that the above Kim Jae-le's complaint against the above Kim Jae-ap's fraud was also an unlawful act of failing to exhaust all necessary deliberations or misleading facts in violation of the rules of evidence. The arguments are with merit.

B. As to Defendant 1’s embezzlement of agricultural loans:

According to the judgment of the court below, among the facts charged in this case, Defendant 1 took out a loan of KRW 17,00,000,000 from the defendant Kim Jae-in branch of the Agricultural Cooperative Kim Jae-sik in the name of the victim Kim Jae-sik and kept KRW 7,00,000 which the victim decided to use for his own purpose and embezzled it. The court below found Defendant 1 guilty of embezzlement, and there was the testimony of Kim Jae-sik, his police and prosecutor's office that there was no fact that he received KRW 7,00,000 from Defendant 1, and the above amount was loaned, and the defendant paid KRW 10,00,00,000 to Kang Jae-ok, who was the collateral security, as a part of the initial agreement. The above defendant paid KRW 13,00,000,000 for the balance of the investment in real estate business in the above Kim Jae-sik at the police level, and paid KRW 7,000,000.

According to the records, each letter of March 1, 1979 under the above defendant's name (No. 5-4 of the investigation record No. 19 of 5-4 of the investigation record) was prepared on the basis of his own will, since the above defendant's signature and seal was recognized as the guarantor and denied its contents without any reasonable explanation, according to his testimony of the court of first instance, each letter is recognized as being prepared on the basis of his own will. According to each letter, the above defendant's loan was already written on March 1, 1979, after February 16, 1979, in which the above defendant was paid the loan amount of KRW 17,000,000 and was written on the premise that he was paid KRW 7,00,000, and the above statement was already written on the premise that he was paid KRW 17,000,000 and the above amount of real estate investment was changed to KRW 60,000,000,000 for the above real estate investment loan to the defendant.

Therefore, although the police officer of the victim Kim Jae-sik and Kim Jae-ap could not believe each statement to the first instance court, the court below acknowledged that he embezzled 7,000,000 won of the Nong Loans to Defendant 1 based on the above evidence was found to have committed an unlawful act of misunderstanding facts against the rules of evidence. Thus, the court below's argument is reasonable.

2. According to the court below's decision, when Defendant 1 purchased 219,00,000,000 the market buildings, etc. owned by Pungwon-si Co., Ltd. which are owned by the representative director and a stockholder of Pungwon-si Co., Ltd. from Sep. 22, 1980, the court below accepted the obligation of 89,00,000,000 won such as store rent deposit and bank loan, etc., and paid 130,000,000 won until June 30, 1981. Under the above market's management and operation's convenience, the above company's representative director was transferred to the above company's representative director and performed the business, and the defendant was given consent on Oct. 30, 1980 to borrow money by taking the above market as security prior to the full payment of the purchase price, the court below accepted the loan amount of 70,000,000 won by giving priority to the purchase price to the non-indicted.

However, since the above agreement between Defendant 1 and the seller Kim Jong-tae of the market building, etc. merely define the payment method of the remaining purchase price of the market building and so it cannot be deemed that the above defendant is in the position of managing the market building or preserving the borrowed money by offering the collateral for the seller until the purchase price is paid in full. Thus, even if the above defendant did not pay 70 percent of the borrowed money to the seller, it is merely a non-performance under civil law, and it does not

Ultimately, the court below erred by misapprehending the legal principles of embezzlement to apply the crime of embezzlement to the above defendant under a different view.

3. We examine the Prosecutor’s grounds of appeal as to Defendant 1.

A. As to the embezzlement of eight promissory notes first:

In light of the records, the court below's decision is just that the defendant delivered 8 copies of promissory notes to Jin-hee to the non-indicted 1, but delivered 8 promissory notes to the non-indicted 1, and it does not mean that the defendant delivered 8 promissory notes to the other party for discount, and there is no other evidence to acknowledge that the defendant paid the said notes to the above defendant as a repayment of physical guarantee in addition to the above Jin-hee's statement supporting this, since there is no other evidence to acknowledge that the defendant paid the above bills to the above defendant as a repayment of physical guarantee, and therefore, the above part of the facts charged are just and there is no error of law as

The issue is groundless.

B. As to the uttering of fabrication of private documents:

According to the judgment of the court below, the court below rejected the evidence in accordance with the facts charged and found the facts of the judgment based on the evidence adopted, and thereby, it delegated the comprehensive authority to use his seal for the purpose of the above company's business, etc., and if the defendant consented to the provision of security to the above market building under the circumstance that the above seal was delivered to the defendant, the defendant shall be deemed to have the authority to prepare the minutes of the board of directors necessary for the above provision of security using the above seal, and at least under the relation of the above facts, it cannot be deemed that the defendant prepared the minutes of the board of directors without any authority, and therefore, it cannot be deemed that the defendant had the criminal intent to forge the above Kim Jae-jin and the name of the former ethics by stealing and to forge the documents by stealing the above facts of the judgment. Accordingly, the above part of the facts charged is not guilty. Upon examining the process of cooking the evidence established by the court below in accordance with the records, and there is no error in the misapprehension of legal principles as to forgery of private documents, or there is no error in misconception of facts contrary to the rules of evidence.

C. As to the fraud:

The court below's reasoning that it is difficult for the court below to believe that there was a criminal intent of deceiving the defendant to cancel the provisional registration of this case by deceiving the non-indicted Kim Tae in accordance with the facts of the judgment below, and therefore, it is just that there is no proof of the facts charged, and there is no violation of the rules of evidence such as the theory of lawsuit, and there is no violation of the rules of evidence.

The issue is groundless.

4. Accordingly, the prosecutor's appeal is without merit. The part concerning Defendant 2 and the part concerning Defendant 1 in the judgment of the court below which pointed out that the above error was found in the facts constituting the crime of Defendant 1 cannot be maintained. Since the court below rendered a single sentence as to Defendant 1 with regard to this part of the facts constituting the crime as concurrent crimes with the remaining facts constituting the crime, the part concerning Defendant 2 and the conviction part against Defendant 1 shall be reversed, and the part of the case shall be remanded to the collegiate division of the Seoul Criminal District Court which is the court below for further proceedings consistent with this Opinion, and

Justices Choi Jae-ho (Presiding Justice)