[1] Whether the subsequent disposal act committed after the completion of embezzlement due to the preceding disposal act constitutes a separate crime of embezzlement, and whether the custodian of another’s real estate constitutes a separate crime of embezzlement after the act of embezzlement took place after the completion of the establishment registration of a mortgage on the said real estate, and then the act of establishing a separate collateral or selling the said real estate constitutes a separate crime of embezzlement (affirmative in principle

[2] The case affirming the judgment below holding that, in a case where Defendant B, who was under custody of the victim clan A’s land under a title trust, set up a collateral on the said land to borrow money to repay his personal debt, and thereafter Defendant B and C conspired to sell the said land to Party C, the act of selling the land constitutes a separate crime of embezzlement

[1] [Majority Opinion] (A) The crime of embezzlement is a dangerous crime established even if there is a risk of infringement of legal interests, such as ownership of another person’s property. On the other hand, the crime of embezzlement is established even if there is a risk of infringement of legal interests if there is a risk of infringement of legal interests. On the other hand, the crime of embezzlement takes place after the occurrence of a risk of infringement of legal interests due to a specific act (hereinafter “prior act”) and then a new act of disposal (hereinafter “after the act of disposal”) took place before the occurrence of the risk of infringement of legal interests. The risk of the subsequent act of disposal is merely a means of completing the risk of actual infringement of legal interests, or can naturally be anticipated in the process, and not adding new risks, the risk of the subsequent act of disposal is included in the risk of the prior act of embezzlement, and thus the subsequent act of disposal constitutes an act of ex post facto disposal. However, if the subsequent act of disposal is more likely to increase the risk of infringement of legal interests by adding new risks unexpected by the preceding act of disposal beyond this, it should be deemed that prior act of embezzlement, barring special circumstances.

(B) Therefore, even if a custodian of another’s real estate had the intention of unlawful acquisition and completed the registration of establishment of a mortgage on the real estate, if the act of embezzlement increases the risk of infringement of legal interests by creating a separate collateral on the same real estate and adding the risk of new infringement of legal interests, or if the sale of the pertinent real estate results in the outcome of infringement of legal interests regardless of the existing collateral, such act shall not be deemed an act ex post facto, unless there are special circumstances, since it exceeds the scope naturally expected from the initial collateral, such as sale by voluntary auction for the execution of the right to collateral security, and thereby adding new risk of infringement of legal interests or causes the result of infringement of legal interests, and

[Concurring Opinion by Justice Lee Sang-hoon and Justice Kim Yong-deok] (A) As long as the crime of embezzlement is established by prior embezzlement that creates a risk of infringement on ownership of the entire real estate due to the preceding embezzlement that creates a mortgage on another person’s real estate, the subsequent embezzlement, such as the subsequent act of creating a separate mortgage on the said real estate or the act of selling the said real estate, causes the risk of infringement on ownership again to the entire real estate, barring any special circumstance, deeming the subsequent embezzlement as an act of ex post facto embezzlement that has already been assessed by the preceding embezzlement to be a imp

(B) In a case where a person commits the subsequent embezzlement that causes a greater risk even though the risk of infringement on ownership arising from the preceding embezzlement is weak and excessive costs and efforts are not imposed, the anti-sociality and punishment of the act is sufficiently recognized and the person who is the general public should be punished accordingly. In such a case, it is necessary to consider it as subject to punishment rather than as an act ex post facto punishment. Such interpretation may be possible even without changing the previous precedents, and even if it is necessary to revise the precedents in order to make such interpretation, it is sufficient to revise the precedents only to the extent limited.

[Dissenting Opinion by Justice Lee In-bok and Justice Kim Shin] (A) The crime of embezzlement provided for in Article 355(1) of the Criminal Act is separate from the crime of breach of trust provided for in Article 355(2) of the same Act, in that the acquisition of property is a constituent act. Since the intent of unlawful acquisition of property lies in a complete infringement on the principal right, such as the victim’s ownership, etc., and thus, if there is embezzlement based on such intent of unlawful acquisition, the outcome or risk of infringement on legal interest already lies in the entire property, which is the object of ownership, and therefore, it is natural logical conclusion that there is a new disposal act by the custodian of property after the crime of embezzlement, and thus, there is no separate outcome or risk of infringement on legal interest.

(B) If the custodian of another’s real estate uses a part of the real estate’s property value against the fiduciary relationship, that is, not the establishment of a collateral to a third party as an act of breach of trust, but as an intention to illegally acquire the pertinent real estate as the property, namely, the establishment of a collateral as an embezzlement, the outcome or risk of infringement of legal interests arising from such embezzlement would be an excess of the entire ownership of the said real estate at that time. In this case, additional outcome or risk of infringement of legal interests arising from the subsequent disposal should be deemed impossible in legal logic.

[2] In a case where Defendant B, who had been keeping the land owned by the victim clan A under a title trust, set up a collateral on the said land to borrow money to repay his/her own debt, and thereafter Defendant B and C conspired to sell the said land to Jung, the case affirming the Defendants’ assertion that the Defendants’ act of selling the land constitutes an act subsequent to the establishment of the prior collateral and thus constitutes a separate crime of embezzlement, on the ground that the Defendants’ act of selling the land constitutes an act subsequent to the establishment of the prior collateral.

[1] Article 355 (1) and (2) of the Criminal Act / [2] Articles 30 and 355 (1) of the Criminal Act

[1] Supreme Court Decision 96Do1755 delivered on November 29, 1996 (Gong1997Sang, 264), Supreme Court Decision 96Do2731 delivered on January 20, 1997 (amended), Supreme Court Decision 97Do3282 delivered on February 24, 1998 (Gong1998Sang, 948), Supreme Court Decision 99Do5 delivered on April 27, 199 (amended on April 1999Sang, 1114), Supreme Court Decision 9Do2651 delivered on November 26, 199 (amended on November 26, 200Sang), Supreme Court Decision 200Do3210 delivered on March 24, 200 (amended on March 26, 2009), Supreme Court Decision 2010Do32169 delivered on March 21, 2010 (amended on March 26, 2002).

Defendant 1 and one other

Defendants

Law Firm Jeongn Law, Attorneys Kwon Sung-hwan et al.

Suwon District Court Decision 2010No594 decided July 23, 2010

All appeals are dismissed.

The grounds of appeal are examined.

1. The crime of embezzlement is a dangerous crime in which the principal right, such as ownership of another person’s property, is protected by the law, and if there is a risk of infringement of legal interest, it shall be established even if the result of infringement is not generated (see Supreme Court Decision 2002Do219, Nov. 13, 2002).

On the other hand, if the crime of embezzlement occurred due to a specific act of disposal (hereinafter referred to as "prior act of disposal"), and then a new act of disposal (hereinafter referred to as "after the act of disposal") was committed before the occurrence of the result of infringement of legal interests, which is a final one, after the occurrence of the risk of infringement of legal interests, the subsequent act of disposal is merely a means to complete the risk of infringement of legal interests that occurred by the preceding act of disposal, or can naturally be expected in the process, and not a new risk is added, the risk of the subsequent act of disposal is included in the risk of being assessed by the crime of embezzlement that has already been established by the preceding act of disposal, and such subsequent act of disposal constitutes an act of ex post facto punishment.

However, in the event that the latter dispositive act goes beyond this and thus increases the risk of infringement of legal interests by adding new risks that cannot be anticipated by the preceding dispositive act, or causes the outcome of infringement of legal interests in a manner unrelated to the preceding dispositive act, such act exceeds the risk assessed by the crime of embezzlement, barring special circumstances, it shall be deemed that the crime of embezzlement is established separately, barring special circumstances.

Therefore, even if a custodian of another person's real estate has committed embezzlement once the act of embezzlement was completed by completing a registration of creation of a mortgage on the real estate with an intention of unlawful acquisition, if it increased the risk of infringement of legal interests by creating a separate collateral on the same real estate and adding a new risk of infringement of legal interests, or if it resulted in a result of infringement of legal interests regardless of the existing collateral by selling the real estate, such act shall not be deemed an ex post facto act, barring any special circumstance, since it exceeds the scope naturally expected from the initial collateral, such as sale by voluntary auction for the execution of the collateral, and thereby adding the new risk of infringement of legal interests or causes a result of infringement

Supreme Court Decisions 96Do1755 Decided November 29, 1996; 96Do2731 Decided January 20, 1997; 97Do3282 Decided February 24, 1998; 99Do5 Decided April 27, 199; 99Do2651 Decided November 26, 199; 200Do310 Decided March 24, 200; 2006Do3636 Decided August 24, 2006; 205Do69 Decided November 9, 2006; etc. shall be amended to the extent that they are inconsistent with this Opinion.

2. Based on its adopted evidence, the court below found the defendants 1 guilty on October 20, 1995 that the defendant 1 set the right to collateral security of KRW 14 million on the land of this case, the right to collateral security of KRW 7.5 million on April 15, 200, and the defendants conspired to sell the land of this case to the non-indicted 193 million on February 21, 2009 and sold the land of this case to the non-indicted 193 million on February 21, 2009, and the defendants sold the land of this case to the non-indicted 193 million on the non-indicted 2,340,000 won (hereinafter referred to as the "the land of this case"), and the defendants sold the land of this case to the non-indicted 2,340,000 won on the non-indicted 2,340,000,000 to the non-indicted 2,300,000.

Examining the reasoning of the lower judgment in light of the aforementioned legal principles and records, the lower court’s aforementioned determination is justifiable, and contrary to what is alleged in the grounds of appeal, there were no errors by exceeding the bounds of the free evaluation of evidence against logical and empirical rules, or by misapprehending the legal doctrine

3. Therefore, the appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices, except a separate opinion by Justice Lee Sang-hoon, Justice Kim Yong-deok, Justice Lee In-bok, and Justice Kim Shin.

4. Separate opinion by Justice Lee Sang-hoon and Justice Kim Yong-deok is as follows.

The Majority Opinion argues that, even if a person who keeps another’s real property in custody has completed a registration of creation of a mortgage on the real property with an intention of unlawful acquisition, if the act of embezzlement increases the risk of infringement of legal interests by creating a separate collateral on the same real property and adding the risk of new infringement of legal interests, or if the sale of the real property results in the outcome of infringement of legal interests regardless of the existing collateral, such act cannot be deemed as an act ex post facto act, barring any special circumstances, and thus, it cannot be deemed as an act of punishment, barring any special circumstance.” However, it is difficult to agree with the Majority Opinion for the following reasons.

A. The crime of embezzlement is established when a person who keeps another’s property embezzled the said property, and the act of embezzlement as a constituent element of embezzlement refers to any act of realizing the intent of unlawful acquisition. As such, for instance, if a person who possesses another’s property commits an objective act that can be perceived from the outside with the intent to change the possession into one’s possession, then the crime of embezzlement is established for the entire property (see, e.g., Supreme Court Decision 2010Do93, Feb. 25, 2010).

Furthermore, as pointed out in the Majority Opinion, embezzlement is a dangerous crime established when there is a risk of infringement of legal interests, such as ownership of another person’s property. Therefore, if a person who keeps another’s real property with an intent to acquire unlawful acquisition and has registered the establishment of a mortgage on the real estate, causes an indivisible risk of infringement of ownership or loss of ownership on the entire real estate, and thereby, embezzlement is established against the entire real estate.

Meanwhile, the act of disposal of the embezzled goods after the act of embezzlement was completed does not constitute a separate crime if the act of disposal is within the scope that can be deemed to have been evaluated by the act of embezzlement first conducted, and if it is within the scope that can be seen as having been abandoned, it does not constitute a separate crime (see, e.g., Supreme Court Decisions 92Do2999, Mar. 9, 1993; 2010Do93, Feb. 25, 2010).

As long as the crime of embezzlement is established by prior embezzlement that creates a risk of infringement on ownership of the entire real estate by creating a right to collateral security on another person’s real estate, the subsequent embezzlement, such as a separate act of creating a collateral security on the pertinent real estate or an act of selling the pertinent real estate, is merely causing a risk of infringement on ownership again to the entire real estate, barring any special circumstance, deeming the subsequent embezzlement as an act of ex post facto embezzlement, which is evaluated by the prior embezzlement, barring any special circumstance.

Although the Majority Opinion, in cases where new risks that cannot be anticipated as a prior dispositive act increase the risk of infringement of legal interests by adding a new risk that may arise, or where infringement of legal interests is caused by a method unrelated to a prior dispositive act, barring any special circumstance, it presented and explained the criteria that do not constitute an tentative ex post facto act. However, according to such criteria, separate act of creation of a collateral security on the pertinent real estate or an act of sale of the pertinent real estate conducted after the prior Embezzlement, which is the creation of a collateral security on another’s real estate, constitutes a separate embezzlement, not an act of creation of a collateral security on the pertinent real estate, which is evaluated by prior Embezzlement, in principle, as a matter of principle, and the specific reasons are that “the extent that can naturally be anticipated by the prior dispositive act, such as sale by voluntary auction for the enforcement of a collateral security” beyond “the risk that may naturally result in infringement of legal interests, such as sale by voluntary auction for the first dispositive act, etc.” is ultimately the risk of infringement of ownership of the pertinent real estate, and thus, it is not an act of ownership after misappropriation.

B. The precedents should be careful in its change. Although the possibility of change in the precedents is institutional and it is expected that the people will accept the change of legal relations accordingly, the precedents have a genuine normative power. As such, the legal stability is ensured and the citizens can use the precedents as guidelines for decision-making or action. In a case where the Supreme Court precedents have been accumulated in a certain direction for a long time in connection with the interpretation without any change in the provisions of laws, more careful caution should be given to the change of the precedents. In order to change the accumulated precedents, such opinion is much superior value compared to maintaining the concept of justice or changing the precedents so that it would seriously go against the concept of justice according to changes in the times and circumstances, or significantly go beyond the purpose of the relevant provisions, thereby undermining the legal stability of the precedents. In particular, it is not desirable to change the existing precedents to the extent that it would be justified merely because new legal opinions are somewhat better or more reasonably accumulated, and it is not desirable that the existing precedents should be subject to punishment only in cases where it is recognized that the new act is not subject to punishment in the past criminal cases, and that it would be unreasonable to punishment.

For a long time, the Supreme Court has held that the act of embezzlement by a real estate trustee at will by setting up a mortgage on the entrusted real estate is completed when the registration was completed, and that the act of establishing or selling the mortgage on the real estate thereafter does not constitute a separate embezzlement because it constitutes an act of disposal of the embezzled property, which does not entail any infringement of new legal interests, as a matter of principle.

However, the Majority Opinion, as to the act that was not subject to punishment by the previous Supreme Court precedents, cannot be deemed as a imprisonative act, barring any special circumstances, and thus, it constitutes a separate crime of embezzlement. However, in light of the above precedents regarding the elements and benefits of the crime of embezzlement, character, and the act of ex post facto embezzlement, the view of the previous Supreme Court precedents that regard “the act of establishing or selling the same real estate after the person who keeps another’s real estate acquired the real estate with an intent to acquire it as an unlawful acquisition” as an ex post facto act and excludes the subject of punishment as a matter of principle by deeming “the act of establishing or selling the same real estate after the establishment registration of a mortgage on the real estate has been completed with the intention to acquire it,” cannot be said to have seriously violated the concept of justice according to changes in the times and situation, or goes beyond the purpose of the penal provision of the crime of embezzlement under the Criminal Act. Even if this is somewhat contrary to the concept of justice or fails to fully realize the purport of the penal provision of embezzlement, all of the above acts of embezzlement should be deemed to have superior value of embezzlement or ex post facto act of embezzlement.

Therefore, without sufficiently considering the above circumstances, we cannot agree with the Majority Opinion’s broad revision of the Supreme Court precedents that have been accumulated in the past without thoroughly considering the aforementioned reasons.

C. However, even according to the previous Supreme Court precedents, embezzlement is separately established for embezzlement committed after the infringement of ownership arising from the preceding embezzlement is recovered (see Supreme Court Decisions 78Do2175, Nov. 28, 1978; 96Do1755, Nov. 29, 1996; 200Do310, Mar. 24, 200), since the risk of infringement on ownership arising from the preceding embezzlement is weak for 10 months or more, it is difficult to conclude that the above act constitutes 90 ex post facto embezzlement and 197 ex post facto embezzlement should not be subject to punishment. In such a case, it is necessary to revise the Supreme Court precedents within 106 Supreme Court precedents, which held that the above act should be subject to punishment for 10 months or more, even if it is deemed that there is no need to revise the above 97 Supreme Court precedents.

However, in this case, Defendant 1’s act of setting the right to collateral security of KRW 14 million on November 30, 1995 or setting the right to collateral security of KRW 7.5 million on April 15, 2003 with respect to the land of this case, which was kept in custody by the victim’s clan title trust, constitutes embezzlement of the entire land because it poses a risk of infringing the ownership of the entire land, but it does not constitute an excessive risk of infringing the ownership of the entire land, but it does not constitute a degree of removing or restoring the risk to a third party without any excessive cost and effort. Since the Defendants conspired to sell the land of this case to a third party more than the risk arising from the above act of establishing the right to collateral security, it may be evaluated that it would result in a new infringement of legal interest, this act constitutes a separate act of selling the land of this case. Accordingly, the lower court’s conclusion that the Defendants’ act of selling the land of this case should be justified.

D. As above, although the Majority Opinion does not oppose the conclusion of the Majority Opinion that all appeals by the Defendants should be dismissed, it is reasonable to change the reason. It is so stated in the Concurring Opinion.

5. Dissenting Opinion by Justice Lee In-bok and Justice Kim Shin

The Majority Opinion presumed that a subsequent disposal act does not constitute a separate crime as an act subsequent to the establishment of a right to collateral security, inasmuch as a subsequent disposal act is merely a means to complete the risk of infringement of real rights arising from the preceding disposal act, or could naturally be anticipated during that process, and if a new risk is not added, then the subsequent disposal act does not constitute a separate crime as an act subsequent to the establishment of a right to collateral security on the real estate with intent to acquire unlawful acquisition, even if the crime of embezzlement was completed once the custodian of another’s real estate established a right to collateral security on the real estate with intent to acquire unlawful acquisition, it would result in a new risk or consequence of infringement of legal interests beyond the scope naturally anticipated due to the establishment of a right to collateral security, which is an act subsequent to the preceding embezzlement, and thus, it cannot be deemed an ex post facto act, barring special circumstances.

However, the crime of embezzlement provided for in Article 355(1) of the Criminal Act is separate from the crime of breach of trust provided for in Article 355(2) of the same Act, in that the acquisition of property is deemed a constituent act. Since the intent of illegal acquisition of property is in essence a complete infringement on the principal right such as the victim’s ownership, if there is an embezzlement based on such intent of unlawful acquisition, the outcome or risk of infringement on legal interest already extends to the entire property, which is the object of the ownership. Accordingly, once the crime of embezzlement is established, it is natural logical conclusion that there is a new disposal act by the custodian of the property, and there is no separate outcome or risk of infringement on legal interest, because there is a new disposal act by the custodian of the property.

The Majority Opinion argues that an act of establishing a collateral security, which is a prior disposal of real estate, constitutes embezzlement, but the subsequent disposal of real estate, such as the creation or sale of a new collateral security on the same real estate, is beyond the scope naturally expected through prior embezzlement, thereby causing new risk or result of infringement of legal interests. However, in view of various objective circumstances surrounding the act of establishing a collateral security on the pertinent real estate, the act of creating a collateral security on the said real estate, which can be evaluated as embezzlement of the entire real estate, is not merely the diversion of a certain value of property, but is an objective expression of the intent of unlawful acquisition of the entire real estate. Ultimately, there is inconsistency in legal evaluation that is compatible between what disposal act constitutes embezzlement and that the risk or result of additional infringement of legal interests on the subject matter of embezzlement is possible.

Nevertheless, the establishment of embezzlement of the preceding dispositive act and the possibility of punishment of the latter dispositive act are recognized at the same time because it is difficult to view that it is due to the following contradictory relation only because it is necessary to punish the latter dispositive act. In addition, the Majority Opinion appears to have added the exception to the possibility of punishment of the latter dispositive act through the phrase “special circumstances” that is difficult to estimate the content and scope thereof, thereby making it difficult to agree thereto.

In short, if a person holding another’s real estate uses a part of the property value of the real estate against a fiduciary relationship, that is, the act does not establish a collateral to a third party as an act of breach of trust, but rather establishes a collateral as an act of embezzlement, i.e., an intent to illegally acquire the relevant real estate as a property, the outcome or risk of infringement of legal interests by such embezzlement is likely to reach the entire ownership of the said real estate at that time. In such a case, additional consequences or risk of infringement of legal interests by a subsequent disposal should be deemed impossible in legal logic.

Therefore, as the judgment of the court below in this case, it is possible to assess that the prior act does not include the result or risk of infringement of legal interests arising from the prior act of creating a collateral security, and it does not include the result or risk of infringement of legal interests arising from the subsequent act of disposing of property. Thus, it is possible only when the prior act was committed not by embezzlement based on the intention of unlawful acquisition of the pertinent real estate, but by using some property value of the relevant real estate. Thus, even if the prior act of creating a collateral security constitutes embezzlement, the subsequent act of disposing of property may not be deemed an act ex post facto ex post facto, and it is not acceptable to agree with the logic of the court below that the prior act of establishing a collateral security should not be deemed an act of embezzlement, but rather, if the prior act of creating a collateral security has been established, it shall be reversed the judgment of the court below to the purport that the punishment of the subsequent act of disposing of property is affirmed only under the conditions that constitute a crime of embezzlement, not the crime of embezzlement, or the act of breach of trust.

For the foregoing reasons, we respectfully dissent from the Majority Opinion.

Justices Yang Chang-tae (Presiding Justice)