[1] In a case where a person fails to explain his/her whereabouts or the place of use even though he/she was not in his/her custody as a trustee, whether it can be presumed that he/she voluntarily consumed and embezzled (affirmative), and whether the consignment relationship in the crime of embezzlement may occur by the "management of affairs" (affirmative)

[2] The case holding that where it is evident that the victim received a request from the victim for the sale of the Buddhist prize or held it without receiving a request from the victim, but the victim did not return it even though he received a request from the victim, and the victim did not return it at any time and did not explain the reasons why he did not return it, the act constitutes "when the person who keeps another's property refuses to return it" under Article 355 (1) of the Criminal Act

[1] Article 355 (1) of the Criminal Act / [2] Articles 329 and 355 (1) of the Criminal Act

[1] Supreme Court Decision 2000Do1743 Decided September 4, 2001 (Gong2001Ha, 2203) Decision 2001Do5459 Decided July 26, 2002 (Gong2002Ha, 2136), Supreme Court Decision 2006Do5538 Decided September 6, 2007, Supreme Court Decision 2009Do495 Decided April 23, 2009

Defendant

Prosecutor

Seoul Central District Court Decision 2008No1866 Decided November 5, 2008

The part of the judgment below on embezzlement is reversed and that part of the case is remanded to the Seoul Central District Court Panel Division.

The grounds of appeal are examined.

1. As to the charge of larceny

After comprehensively taking account of the adopted evidence, the lower court maintained the first instance court that acquitted the Defendant on the ground that it is difficult to readily conclude that the Defendant was stolen of the gold bullion as stated in the facts charged (hereinafter referred to as the “non-existence of the instant case”) on the grounds of its stated reasoning.

In light of the records, the above fact-finding and decision of the court below are justified. There is no error of law by misunderstanding of facts or misunderstanding of legal principles as to intention of illegal acquisition, as otherwise alleged in the ground of appeal.

2. As to the charge of embezzlement

A. As to the facts charged of embezzlement, the court below found the defendant not guilty on the ground that the non-indicted 1 and 2, the non-indicted 1 and the non-indicted 2, the owner of the non-indicted 1 and the non-indicted 2 consistently stolen the non-indicted 1 and they did not request the defendant to sell them. As long as the defendant consistently denies the intention of illegal acquisition from the police to the court below, so long as they consistently denied the intention of illegal acquisition, they cannot be used as evidence of guilt only because the defendant lost the non-indicted 1 and the non-indicted 1 and the non-indicted 2, the non-indicted 2, the defendant, and there is no evidence of probative value

B. However, if the defendant does not properly explain his/her whereabouts or place of use even though he/she had no property in his/her custody on commission, it can be presumed that he/she voluntarily consumed and embezzled it (see, e.g., Supreme Court Decision 2006Do5538, Sept. 6, 2007). In embezzlement, a consignment relationship may occur through administrative management.

At around 15:00 on May 30, 207, the Defendant asserted that Non-Indicted 2 had sold the instant fire at the office of the president of Non-Indicted 3 Co. 3, 2007, and was in custody of the instant accident. In light of Non-Indicted 4’s statement employed by the lower court, it is evident that the Defendant was in custody of the instant fire even though he received the request from the victim Non-Indicted 1 and 2 for selling the instant fire or without receiving such request. However, it is evident that the Defendant had been in custody of the instant fire. However, the Defendant did not return the instant fire on the ground that he did not request the above victims to return it, and as such, the Defendant did not return it on the ground that he did not return the fire of this case, or did not leave it to the Non-Indicted 3’s office, or did not return it to the Non-Indicted 3, or did not return it from time to time under the influence of alcohol. According to the legal principles as seen above, the Defendant’s act of selling and loss of the Defendant’s property can be reversed.

C. Nevertheless, the court below acquitted the defendant of the charge of embezzlement on the ground that the defendant denies the intention of illegal acquisition. The court below erred by failing to exhaust all the deliberation or by misapprehending the legal principles on the intention of illegal acquisition of embezzlement, which affected the conclusion of the judgment. The ground of appeal pointing this out has merit.

3. Therefore, the part of the judgment of the court below regarding embezzlement is reversed, and that part of 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 Kim Ji-hyung (Presiding Justice)