(영문) 대법원 2012.5.24. 선고 2012도2826 판결

A juristic person can be the subject of the rights and obligations under the private law, and there is no legal capacity to commit an offense, and the affairs of the juristic person shall be realized by the representative act according to the decision-making process of the representative agency, which is a natural person representing the juristic person. Therefore, even if the subject of the custody of property in the crime of embezzlement under Article 355(1) of the Criminal Act is a juristic person, a juristic person without criminal capacity cannot be the subject of the crime of embezzlement, and a juristic person acting on behalf of the juristic person shall be the subject of the offense of embezzlement (see, e.g., Supreme Court en banc Decision 82Do2595, Oct. 10, 1984; Supreme Court Decision 96Do524, Jan. 24, 1997).

Meanwhile, “Refusal to return” under Article 355(1) of the Criminal Act refers to an act of expressing intent to exclude the owner’s right against a custodian. Thus, in order for a custodian to constitute embezzlement, the fact that the custodian of another’s property simply refuses to return is insufficient to the extent that the act of refusing to return is the same as the act of embezzlement by taking account of the grounds for refusal to return and the subjective intent. In the crime of embezzlement, so-called unlawful acquisition intent refers to an intention to dispose of another’s property as he/she disposes of it with the owner without a legitimate title contrary to the purport of embezzlement. Thus, even if he/she refused to return it, if he/she did not return it due to justifiable grounds for refusal to return it, it cannot be deemed an intention to acquire unlawful acquisition (see Supreme Court Decision 2003Do7487, Feb. 10, 206).

The lower court determined that the Defendant, who was the representative director of the said company, was in the legal status of the custodian of the instant vehicle in relation to D, as the representative director of the said company B or C, concluded the lease contract and the instant vehicle succession contract with D, and that D sent the Defendant a notice to the effect that D would terminate the said lease contract and return the vehicle.

In addition, according to the following circumstances acknowledged by the employment evidence, namely, ① if a lessee violates the obligation to pay rent, etc. even once a lessee violates the obligation to pay the leased fee, the lower court determined that D would terminate the lease contract and claim the return of the vehicle if the lessee fails to perform the obligation within the given period. Since C corporation did not pay the leased fee more than three times from June 1, 2010 to September 15, 2010, it appears that the Defendant, who is the representative director of C corporation, did not perform the duty to return the vehicle without any separate notice of termination and at the same time, did not return the vehicle to the Defendant and did not return the vehicle without any justifiable reason, the lower court determined that C corporation did not return the vehicle to the Defendant at the time of delayed delivery and did not return the vehicle to the Defendant at the time of the aforementioned provisional disposition. However, the lower court did not accept the aforementioned provisional disposition that the Defendant did not have been obliged to return the vehicle without any justifiable reason, and that C corporation did not have any duty to return the vehicle to the Defendant’s husband.

In light of the above legal principles and records, we affirm all such judgment of the court below as just, and there is no error in the misapprehension of legal principles as to the status of a custodian in embezzlement and the intention of unlawful acquisition, contrary to what is alleged in the grounds of appeal.

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