[1] Details of the use and embezzlement of money entrusted with the purpose and purpose of use

[2] In a case where a golf membership trading company operator temporarily consumed the money deposited at the request of purchase with another member's purchase price, etc., the case holding that, although the above purchase price was reserved until the time of golf membership purchase with the entrusted money with its purpose and use, it is difficult to recognize its specific nature, and it does not constitute embezzlement since the defendant's unlawful acquisition intent cannot be inferred

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

[1] Supreme Court Decision 94Do462 delivered on September 9, 1994 (Gong1994Ha, 2674), Supreme Court Decision 94Do2076 delivered on October 12, 1995 (Gong1995Ha, 3832), Supreme Court Decision 2002Do2939 Delivered on October 11, 2002 (Gong2002Ha, 2778), Supreme Court Decision 2003Do6733 Delivered on March 9, 2006 (Gong2006Sang, 678)

Defendant

Prosecutor

Attorney Choi Jin-si et al.

Seoul Central District Court Decision 2007No778 Decided August 22, 2007

The appeal is dismissed.

The grounds of appeal are examined.

The money entrusted with the purpose and purpose shall be deemed to be reserved by the truster until it is used for the specified purpose and purpose. However, if the specific nature of the money is not specifically required, even if it is temporarily used in a situation where the trustee can substitute it for another money at the necessary time without going against the purpose of the entrustment, the crime of embezzlement shall not be established. The trustee constitutes embezzlement only when he consumes it for another purpose (see, e.g., Supreme Court Decisions 94Do2076, Oct. 12, 1995; 2002Do2939, Oct. 11, 2002).

The summary of the facts charged in the instant case is that the Defendant is operating Nonindicted Co. 1, a trade broker, such as golf membership, and around December 21, 2005, the Defendant was delegated by Nonindicted Co. 3, the representative director of Nonindicted Co. 2, who purchased and demanded the purchase of the Seocho ballast Convention golf club membership (hereinafter “instant membership”) from Nonindicted Co. 3 for KRW 400 million, and deposited KRW 400 million in the name of the Defendant Co. 27 of the same month in the name of the Defendant for the purpose of the victim while he was in the business custody for the victim. However, even though the Co., Ltd., which requested the first Defendant to sell the instant membership, voluntarily consumed the purchase price of other golf membership at the same place at that time and embezzled it.

The court below acknowledged the facts as stated in its reasoning based on the evidence duly adopted, and found that Non-Indicted 3, the representative director of Non-Indicted 2, purchased membership rights of this case, regardless of who is the holder, and requested to purchase them. Therefore, even if Non-Indicted 2's withdrawal of the intention of sale, it cannot be readily concluded that the defendant did not immediately return the purchase price. 40 million won which the defendant received from Non-Indicted 2, with the name of purchase of membership rights of this case, is reserved to Non-Indicted 2, the truster, and the right to purchase the membership rights of this case until the time of purchase of the membership rights of this case. However, the court below's determination that the non-Indicted 2's act of purchasing and selling golf membership rights of this case constitutes non-Indicted 2, the defendant company's act of purchasing and selling the membership rights of this case at least 30,000,0000 won, and it is difficult to recognize that the defendant's money was deposited in the head of this case's company by 200 billion won or more.

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

Justices Park Si-hwan (Presiding Justice)