Defendant

Prosecutor

Maliapap

Attorney Lee Don-chul

Seoul Western District Court Decision 2009No2317 Decided February 10, 2010

The judgment of the court below is reversed.

A defendant shall be punished by imprisonment for not more than ten months.

However, the execution of the above punishment shall be suspended for two years from the date this judgment became final and conclusive.

1. Summary of grounds for appeal;

The victim non-indicted 1 was directly a contracting party to the contract for ○○ apartment 1402 (hereinafter “the apartment of this case”) located in Mapo-gu Seoul Metropolitan Government (number omitted), and entered into the contract for sale in lots with the cooperative, but only the name of the defendant was registered, so if the defendant disposed of the apartment of this case, the title trust constitutes a title trust with the intermediate omission type registration. Therefore, if the defendant disposed of the apartment of this case, the crime of embezzlement against the victim non-indicted 1 is established, and even if the above title trust falls under a title trust, even if the seller did not have known that the title trust falls under a title trust, the court below determined that the title trust of this case constitutes the so-called contract title trust, and that the seller was not guilty of the facts charged of this case on the premise that the seller

2. Determination

A. Summary of the facts charged in this case

The following facts constituting the crimes under paragraph (3) shall be recorded:

B. The judgment of the court below

The crime of embezzlement is established when a person who keeps another’s property embezzled such property. According to the provisions of Article 2 subparag. 1 and Article 4 of the Act on the Registration of Real Estate under Actual Titleholder’s Name, where a truster and a trustee enter into a title trust agreement with the owner who was unaware of the fact that a title trust agreement exists, and thereby a trustee entered into a sales contract for an apartment, and the registration of ownership transfer of the apartment is completed in the name of the trustee pursuant to the sales contract, the change in real right to the apartment concerned by the registration of ownership transfer is valid. Meanwhile, the title trust agreement between the truster and the trustee is null and void. Thus, the trustee shall be deemed to have acquired the ownership of the apartment concerned as well as the former seller, and the trustee shall not be deemed to be the person who keeps another’s property. This legal principle applies likewise to cases where a title trust agreement was concluded before the enforcement of the above Act and the registration was completed after the enforcement

The facts charged of this case are as follows: (a) around April 24, 1997, the defendant stored the apartment of this case, which was sold in accordance with the title trust agreement with the victim non-indicted 1 in the name of the defendant and embezzled on April 19, 208 for the victim non-indicted 1 by registering the preservation of ownership on April 24, 1997; and (b) even if the facts stated in the facts charged are recognized as they were, the defendant acquired the ownership by registering the preservation of ownership of the apartment of this case; and (c) it cannot be deemed that the defendant stored it for the victim non-indicted 1

Therefore, the facts charged of this case premised on the fact that the defendant kept the apartment of this case, which is the victim non-indicted 1, for non-indicted 1, constitutes a crime, and thus, the defendant is not guilty pursuant to the former part of Article 325 of the

C. Judgment of the court below

1) nature of title trust of this case and establishment of embezzlement

In cases where a person who purchased real estate, without completing the registration of transfer of ownership under his/her name with a third party and without completing the registration of transfer of ownership under a title trust agreement entered into with the third party, if the third party disposes of the real estate trusted under his/her name pursuant to the said title trust agreement with the third party, the crime of embezzlement against the truster is established. The title trust was made prior to the enforcement of the Act on the Registration of Real Estate under Actual Titleholder’s Name, and the disposal was made after the title trust agreement and the change in real rights by the registration made pursuant to the said Act was invalidated, and the disposal was not different (see, e.g., Supreme Court Decisions 2009Do1884, Jan. 28, 2010; 2008Do1033, Apr. 10, 2018).

Comprehensively taking account of the evidence duly adopted and examined by the court below and the statements of the non-indicted 1, 3, and 4 of the witness of the trial party, the victim non-indicted 1 tried to purchase the apartment of this case around 1992. However, the victim non-indicted 1 at the time did not reside in Seoul for not less than three years, and thus failed to meet the qualification requirements, the contract was entered into in the name of another person meeting the qualification requirements upon the recommendation of the construction company and the seller's cooperative, and the defendant who is the punishment father (the defendant was married on July 13, 1976 with the non-indicted 5 and the non-indicted 4 of the victim, but divorced on December 21, 1994, the defendant responded to the request for the name transfer of ownership between the seller and the non-indicted 1 and the non-indicted 2, the victim non-indicted 1 paid the purchase price of this case at KRW 90,8100,000,0000,000 won in total,000 won and KRW 100.

According to the above facts, it is reasonable to view that the victim non-indicted 1 purchased the apartment of this case as the party to the sales contract of the apartment of this case, and even as the seller's partnership, the victim non-indicted 1 was actually aware of the above title trust agreement and actually concluded the sales contract with the purchaser who is the other party. Thus, the title trust relationship between the victim non-indicted 1 and the defendant is not the so-called contract title trust where the truster entered into a title trust agreement with the truster and the trustee became the party to the sales contract, and the registration is completed in the name of the trustee, but rather, it is not the so-called contract title trust where the truster entered into a title trust agreement with the truster, and the truster becomes the party to the sales contract, and the truster entered into the sales contract with the seller: Provided, That only if the truster becomes the party to the sales contract and the registration is completed immediately in the future, the so-called "title-registered title trust" should be established in accordance with the above legal principles.

2) Determination on the Defendant’s assertion

A) First, the Defendant’s title trust agreement on the instant apartment between the victim Nonindicted 1 and the victim Nonindicted 1 was true, but from around 1998, the Defendant or his father, Nonindicted 6, paid the principal and interest of the instant apartment, and managed the instant apartment at the time of managing the instant apartment. Since all of the expenses for the registration of the instant apartment, acquisition tax, property tax, etc. were borne, it is reasonable to deem that the instant title trust relationship was terminated from around 198, and that the Defendant acquired the full ownership of the instant apartment in relation to the victim Nonindicted 1, and that around that time, the settlement with the victim Nonindicted 1 was completed.

However, even if the defendant has been managing the principal and interest of the apartment of this case in partial payment, or bears the registration expenses, acquisition tax, property tax, etc., such circumstance alone does not necessarily lead to termination of the title trust relationship of this case as a matter of course (According to the records, it is recognized that the victim non-indicted 1 was unable to continue to manage the apartment of this case for a long time due to the husband's failure of business operation and escape therefrom), and in full view of all the evidence examined by the court below and the trial court, it is difficult to deem that there was a settlement agreement between the defendant and non-indicted 1 and the victim as alleged by

B) Next, even if the title trust agreement on the apartment of this case is null and void and any change in real right is null and void, the victim non-indicted 1 cannot make any claim against the seller and can make a claim for unjust enrichment only against the trustee. Such right to claim unjust enrichment has already expired after the extinctive prescription expired from July 1, 1996, at least after the lapse of the period of grace period for the conversion of real name following the enforcement of the Act on the Registration of Real Estate under Actual Titleholder’s Name, and the extinctive prescription has already expired. Accordingly, the victim non-indicted 1, who is the victim, is not legally protected, and thus, the Defendant’s act in this case cannot be held accountable

However, as seen earlier, the title trust relation with the apartment of this case constitutes the so-called middle omission registration type title trust. In such a case, both the title trust agreement and the registration under the name of the trustee under Article 4(1) and the main text of Article 4(2) of the Act on the Registration of Real Estate under Actual Titleholder’s Name becomes null and void. However, the claim contract between the title truster and the seller is valid without any influence, and the right to real estate remains in the seller. Thus, the title truster is still entitled to file a claim against the seller for the registration of ownership transfer under the sales contract, and on behalf of the seller, the title truster may also file a claim against the trustee for the cancellation of the registration under the name of the trustee. In addition, the third debtor cannot set up a claim based on the right of subrogation against the creditor, which is a claim based on the right of subrogation against the creditor, and the person who is entitled to invoke the expiration of the extinctive prescription period, and the garnishee of the creditor subrogation lawsuit is not entitled to exercise it (see, e.g., Supreme Court Decision 2009Da141014.

In light of the above legal principles, the victim non-indicted 1 still filed a claim against the seller for the registration of ownership transfer according to the sales contract of the apartment of this case, and the defendant can claim the cancellation of the above invalidation registration against the seller in subrogation of the seller, and the defendant cannot assert that the right to claim for the registration of ownership transfer against the seller of non-indicted 1 was extinguished by prescription (see Supreme Court Decision 80Da2968, Jul. 27, 1982, etc.). Thus, this part of the defendant's assertion that the right to claim for the registration of invalidation against the defendant of the seller constitutes a real right claim based on ownership, and thus does not constitute the subject of extinctive prescription. It is difficult to accept this part of the defendant's assertion that the victim non-indicted 1

3) Nevertheless, the judgment of the court below which acquitted the seller of the instant facts charged on the ground that the title trust of this case belongs to the so-called contract title trust and constitutes the case where the seller is bona fide, is erroneous in the misapprehension of facts or in the misapprehension of legal principles as to the title trust, which affected the conclusion of the judgment. Thus, the prosecutor

3. Conclusion

Therefore, since the prosecutor's appeal is well-grounded, the judgment of the court below is reversed in accordance with Article 364 (6) of the Criminal Procedure Act, and it is again decided as follows.

In around 192, the Defendant, through a title trust agreement with the victim non-indicted 1, sold and embezzled the instant apartment to non-indicted 2 without the victim non-indicted 1’s permission at the Seoul Mapo-gu Seoul Mapo-gu Office for Real Estate Agent (hereinafter omitted) on April 19, 2008, when the Defendant registered the preservation of ownership in the name of the victim on April 24, 1997, and kept for the victim non-indicted 1.

1. Each part of the defendant's statements in the original judgment and the trial court;

1. Each statement in the original trial by Nonindicted 1’s witness at the trial court and the trial court by the party

1. Each statement at the court room of the non-indicted 7 and 4 of the witness

1. Some statements made by the police interrogation protocol regarding Nonindicted 5

1. A certified copy of the real estate register, a copy of the bankbook, a copy of the loan passbook, and a copy of the sales contract;

1. Article relevant to the facts constituting an offense and the selection of punishment;

Article 355 (1) of the Criminal Act (Selection of Imprisonment)

1. Suspension of execution;

Article 62(1) of the Criminal Act

The purchase price of the instant apartment that the Defendant embezzled is KRW 180,000,000, and the victim was able to make an agreement with the victim Nonindicted Party 1 until the trial is held.

However, according to the statement by the defendant or his father and non-indicted 6, a total of KRW 40 million was required to maintain the apartment of this case, and if the first victim non-indicted 1 of the above amount amounts to KRW 50 million, the actual acquisition amount is much less than the purchase amount, and there is no record of punishment or punishment heavier than imprisonment for the same kind of crime. The apartment of this case seems to have been fully paid with the principal and interest of the loan while managing it on the side of the defendant. According to the statement by the defendant or his father and the defendant, if the first victim non-indicted 1 of the above amount exceeds KRW 50 million for the lease deposit appropriated for the sale price, the amount recognized as having been acquired by the defendant is much less than the purchase amount, and all other circumstances that meet the sentencing conditions, such as the character and conduct of the defendant, family environment, specific circumstances of the crime, and circumstances

Judges' engine displacement (Presiding Judge) at a fixed time