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The defendant is innocent. The defendant shall dismiss the application for the compensation order of this case.
Reasons
1. Around December 22, 2006, the Defendant sold the instant land E (hereinafter “instant land”) to the victim D, and agreed to receive a return of the said land by paying to the victim an agreed amount of KRW 1.5 million with the agreed amount around October 15, 2009 (hereinafter “instant agreed amount”).
The Defendant sold the instant land and decided to return the proceeds from sale to the victim as the Defendant failed to prepare the above agreed amount to be paid to the victim, and received necessary documents, such as a certificate of personal seal impression, from the F in Songpa-gu Seoul Metropolitan Government around November 10, 2010.
On November 16, 2010, the Defendant embezzled KRW 97,631,580 during the sale of the instant land to G and H at an insular place and at KRW 153,80,000, while receiving all the proceeds therefrom, and keeping them for the victim, using around that time the Defendant embezzled KRW 97,631,580 during the sale of the said land by using the secured debt repayment and the installation costs of access road to the K-si in Chuncheon City.
2. Determination
A. The crime of embezzlement is an offense with the content that the custodian of another’s property embezzleds or refuses to return the property. The principal subject of embezzlement is the custodian of another’s property. Here, the custody refers to the possession of the property by the consignment relationship. As such, in order to establish the crime of embezzlement, there is a legal or de facto consignment relationship between the custodian of the property and the owner of the property.
B. (See, e.g., Supreme Court Decision 2007Do6463, Oct. 23, 2008).
According to the evidence duly adopted and examined by this Court, the victim purchased the land of this case owned by L, the mother of the defendant, from the defendant around September 2006, and completed the registration of ownership transfer in the name of the victim on December 22, 2006.