Whether the voluntary consumption of materials provided to the contractor as part of the construction cost constitutes embezzlement

In the contract agreement that the contractor purchases materials and executes the construction, the price of the materials supplied by the contractor shall be deducted from the above contract amount, so if the contractor directly purchases timber among the construction materials and provides it to the contractor, the amount equivalent to the above timber shall be deducted from the contract amount. If the contractor received a receipt from the contractor to the effect that the contractor receives money corresponding to the price of timber as part of the construction expenses, it is interpreted that it is nothing more than the purpose of reducing part of the construction expenses as above, and it is reasonable to view that the ownership of the timber is only the owner of the contractor who purchased it. Therefore, even if the contractor uses it voluntarily thereafter, it does not constitute embezzlement

Article 355(1) of the Criminal Act

Defendant

Defendant

Gwangju District Court Decision 81No186 delivered on May 13, 1982

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

We examine the Defendant’s grounds of appeal.

1. According to the reasoning of the judgment below, the court below acknowledged the fact that the defendant, as the owner of the building, entered into a contract for construction works of the apartment building of the fifth floor with the victim's normal trees, and had the above normal waterways execute construction works, he temporarily embezzled the above normal trees by using the above normal trees to the door mold and slabs construction work of the apartment building, and, on the ground that the above normal trees were delayed in the middle payment of the construction cost, 12,00,000 won and 250,000 won at the market price of one ton of the steel bars owned by the same person at the above construction site. The defendant terminated the contract for construction works at the beginning of September of the corresponding year and kept the wood and steel bars in custody in the above indictment at first of October of the corresponding year while the defendant directly used the above timber and steel bars in the construction work and embezzled them at his own discretion, and the defendant is punished by embezzlement.

2. However, with respect to the above timber, the Defendant purchased it from Nonindicted 1’s highest prize and made a vindication that the Defendant owns the above timber as the ownership of the victim’s normal tree. The main reason is as follows. In other words, the instant timber was that the Defendant, who is the contractor, directly purchased the apartment from Nonindicted 1’s highest prize and purchased it from Nonindicted 2,00,000 won by selling it in return for the purchase price, and that he received a receipt from the contractor, that he provided it as an interim payment of construction cost and received KRW 12,00,000 from the above normal tree level of construction cost, so the ownership of the said timber was transferred to the above normal trees.

However, examining the contents of the construction contract entered into between the defendant and the above normal trees according to the records, it is recognized that the construction contract amount is KRW 365,120,00,000, and the above normal trees, which are the contractor, are agreed to be used for construction, and therefore, there is a material price supplied by the contractor among the above construction contract amount. Thus, if the defendant directly purchased timber among the construction materials and provided it to the above normal trees, as stated in the reasoning of the court below, the above construction contract amount should be deducted from the above construction contract amount. Thus, it is interpreted that the receipt received from the above normal trees of the defendant to the effect that some of the construction cost is paid KRW 12,00,000 from the above normal trees, and it is reasonable to view that the ownership of timber is the defendant who purchased it.

If the ownership of the above timber was reverted to the above normal trees as at the time of the original adjudication, the defendant bears the obligation to pay the above timber, but did not acquire the ownership, while the above normal trees did not bear the price, they would result in an unfair result in acquiring the ownership of the above timber without compensation.

In this respect, the judgment of the court below is justified in finding the establishment of embezzlement by misunderstanding the legal principles as to the ownership of materials in the contract for work.

3. Next, with respect to the embezzlement of one ton of the iron bars owned by the victim's normal number, the defendant argued that the above steel bars are not owned by the above normal number, but used with his consent as the ownership of the non-indicted Gabnam. The court below held that if the prosecutor combines the defendant's statement and the statement of the statement and the copy of the contract concerning the above normal number of self-sufficiency, even if the non-indicted Gaboo left the steel at the construction site, even if the above normal number of the iron bars were all consumed, it is recognized that the above gold bars, which was the last part of the above normal number.

However, according to the records, it is recognized that the non-indicted Gagnam, who had been in charge of the construction before the above normal water, left one ton of the steel bars at the construction site, abandoned the construction work, and used the said normal water for the construction of this case. The above normal water was newly purchased and used for the construction of this case. The above normal water had no evidence to confirm whether the above normal water had left one ton of the steel bars at the construction site after the suspension of the construction work, or whether the above normal water had remaining to remain before the construction site, or whether the above normal water had remaining after the consumption of the steel bars at the above Gagnam and then purchased and used it (as the above normal water statement, the remaining steel bars are self-owned according to the above normal water statement, but it was asserted that there was no iron bars that the above part of the statement is credibility).

Ultimately, the judgment of the court below which concluded that one ton of the steel bars used by the defendant is the above normal possession is erroneous in finding the probative value of evidence, and without proper evidence, it is reasonable to discuss this point.

4. Therefore, the judgment of the court below is reversed, and the case to be tried again is remanded to the Panel Division of the Gwangju District Court. It is so decided as per Disposition by the assent of all participating judges.

Justices Lee Lee Sung-soo (Presiding Justice)