The meaning of "storage of a thing" in embezzlement

Article 355(1) of the Criminal Act

Supreme Court Decision 87Do1778 Decided October 13, 1987 (Gong1987, 1751) Supreme Court Decision 2003Do3840 Decided September 23, 2003, Supreme Court Decision 2008Do4859 Decided September 11, 2008, Supreme Court Decision 2010Do17396 Decided March 24, 201 (Gong201Sang, 893)

Defendant

Prosecutor

Suwon District Court Decision 2012No2739 decided December 6, 2012

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

The grounds of appeal are examined.

1. Summary of the facts charged

The facts charged of the instant case reveal that “Nonindicted Party 1 entered into a business agency agreement with the victim Nonindicted Co. 2 Co., Ltd. (hereinafter “victim”) and arrested and detained in a criminal case while operating a vehicle rental agency using a vehicle owned by the victim, the Defendant, the investor, delegated the authority to operate the said vehicle rental agency business. On the basis of this, the Defendant moved three vehicles owned by the victim (hereinafter “instant vehicle”) to the underground parking lot of the building in which he/she had his/her office, and then embezzled the instant vehicle even if he/she was demanded by the victim’s employees to return the instant vehicle.”

2. The judgment of the court below

According to the reasoning of the judgment below, the court below found facts based on the adopted evidence, and found the defendant guilty on the ground that, although the defendant was entrusted with the operation of the office from the non-indicted 1 and was aware of the fact that part of the proceeds would not be remitted to the victim, unless the victim was aware of the delegation relation between the defendant and the non-indicted 1, the court below reversed the judgment of the court of first instance and acquitted the defendant on the ground that there was no ground that the defendant was in the custody status

3. Judgment of the Supreme Court

A. The custody of the property in the crime of embezzlement refers to the actual or legal control over the property. Thus, the custody should be based on the consignment relationship. However, it is not necessarily required to be established by a contract such as loan of use, lease, delegation, etc., but also established by the management of affairs, customs, cooking, and good faith principle (see Supreme Court Decisions 87Do1778, Oct. 13, 1987; 2003Do3840, Sept. 23, 2003; 2008Do4859, Sept. 11, 2008, etc.).

B. According to the reasoning of the lower judgment and the record, Nonindicted 1, who engages in siren brokerage business under the trade name of “○○○ Bart,” entered into an agency agreement with the victim on December 31, 2010. The content of the agreement, Nonindicted 1, while keeping and managing the vehicle owned by the victim, intended to lend the vehicle to the customer, but to transfer the vehicle to the victim KRW 700,000 per month. ② Nonindicted 1, who was arrested by the investigative agency on January 18, 201, was detained in the Suwon House and was detained in the Suwon House. On January 30, 201, he delegated the operation of the “○○○○○ Bart” to the Defendant who is an investor, and was aware that the victim would have recovered the vehicle entirely, and ③ the Defendant did not request the Defendant to return the vehicle to the leased office with the leased company on February 18, 2011, but did not request the Defendant to return the vehicle to the victim.

Examining the above facts in light of the legal principles as seen earlier, there is considerable room to view that Nonindicted 1 entrusted the instant vehicle to the Defendant, due to inevitable circumstances, by entrusting the operation of the “○○○ Bar”, and the Defendant is in the position to keep the instant vehicle through Nonindicted 1 entrusted with the custody and management of the instant vehicle by the victim.

C. Nevertheless, the lower court determined that the Defendant cannot be deemed to have a custodian of the instant vehicle in relation to the victim solely on the ground that the victim was unaware of the delegation relationship between the Defendant and Nonindicted Party 1 and that he did not consent thereto. This is erroneous by misapprehending the legal doctrine regarding the custody of property in the crime of embezzlement, or by failing to exhaust all necessary deliberations.

4. Conclusion

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 Park Poe-young (Presiding Justice)