In case the person who lends the property to another person in the name of the person without title transfers the property to another person by using the name, the part of the crime of embezzlement

Even if the victim has concluded a sales contract by lending the name of the defendant in the case of taking the property devolving upon the original state and the victim has paid the actual amount, the purchaser of the property under the Act on the Disposal of Property Belonging to the State is the defendant himself, who is the nominal owner, and as long as the registration of ownership transfer is completed after the defendant fully pays the remaining amount due, such property belongs to the defendant, so the crime of embezzlement cannot be established even

Article 355 of the Criminal Act

Defendant 1 and one other

Prosecutor

Busan District Court (Law No. 621192)

Each appeal shall be dismissed.

The grounds of appeal by the prosecutor are subsequent to the attachment.

According to the reasoning of the judgment below, the court below concluded that 50 square meters of the land at issue in this case was 50 square meters in the name of the victim non-indicted, and that the purchase contract was concluded and the actual payment was made under the name of the victim. However, since the purchaser of the land at issue in this case was the defendant himself, who is the nominal owner, and the defendant completed the registration of ownership transfer in the future after he fully pays the remainder of the land due, the property is reverted to the defendant 1, so even if the defendant et al. conspired to transfer it to others, the crime of embezzlement cannot be established and the legal relationship of title trust cannot be acknowledged in the case of the property devolving upon the non-indicted. However, if the above judgment of the court below removes only the part that concluded that the legal relationship of title trust cannot be established in the above expression, it is somewhat excessive, but the court below's conclusion that this part of the judgment below cannot be accepted as a premise that the ownership of the non-indicted is not transferred to the purchaser due to the completion of the payment of the purchase price, and it cannot be accepted to the trust agreement with the defendant.

Therefore, the appeal is dismissed in accordance with Articles 390, 399, and 364 (4) of the Criminal Procedure Act. It is so decided as per Disposition.

Judges Kim Kim-gn (Presiding Judge)