(a) The nature of embezzlement in a case where a partner disposes of shares in his/her business property voluntarily or makes a voluntary consumption of proceeds from the sale of his/her business property (affirmative);

(b) The case holding that it is difficult to recognize the intention of unlawful acquisition in a voluntary transfer of a partner's right of equity;

C. Where it is impossible for a purchaser to exercise his/her claim on the profits from the use of another person's building acquired by the former owner by purchasing the building, whether the purchaser of the building is jointly liable for the crime of breach of trust with the former owner (negative)

A. Since the business property belongs to the partnership of the partner, as long as the partnership relationship exists, the partner does not have the right to dispose of the shares of the business property at his own discretion, and if he arbitrarily consumess the shares of the partner at his own discretion or during the custody of the proceeds received from the disposition of the business property, he cannot be exempted from the liability of embezzlement.

B. The defendant and the non-indicted (A) evaluated the amount equivalent to half of the building site and the part of the newly constructed building owned by the defendant as 60,000,000 won and evaluated the amount equivalent to half of the amount to be invested and operated by the non-indicted (A) and appropriated the existing bonds 27,000,000,000 that the non-indicted (A) has against the defendant as investment money, and secure the right by 50% for each of the above real estate, and if the defendant pays the investment money of the non-indicted (A) and interest thereon within 4 months from the date of completion of the registration of preservation of ownership, the above business relationship is naturally terminated if the defendant and the non-indicted (A) have made preservation registration on the completed building under the co-ownership name of the defendant and the non-indicted (A), it is difficult to recognize that the defendant transferred the defendant's 1/2 share to another person to terminate the business relationship in accordance with the above agreement or the proceeds of the transfer to be appropriated for the repayment of the principal and interest of the non-indicted.

C. The agreement on the issue of granting the right to use and benefit from the instant building is a passive duty that Nonindicted Party (A) shall lease the instant building to Nonindicted Party (B) in the manner of the repayment of the said construction price to Nonindicted Party (B) in return for the payment of the said construction price to Nonindicted Party (B). As such, Nonindicted Party (A)’s act of bearing the said content is not an act of bearing the duty to preserve the property of Nonindicted Party (B) but an act of bearing the said content is not an act of bearing the duty to compensate for the property of Nonindicted Party (B), but it is a mere obligatory obligation not an act of bearing the duty of cooperation of Nonindicted Party (A) on the realization of

Therefore, even if Nonindicted Party (A) sold the above building contrary to the above business affairs and purchased it by the Defendant, thereby preventing Nonindicted Party (B) from fulfilling its obligations, it cannot be said that the Defendant is liable for the crime of breach of trust by public offering with Nonindicted Party (A).

Articles 355(1) and 355(2) of the Criminal Act

Supreme Court Decision 75Do2245 delivered on May 11, 1976, 80Do1816 delivered on September 14, 1982

Defendant

Defendant and Prosecutor

Attorney Park Jong-chul, Attorneys Park Do-won

Seoul Criminal Court Decision 80No997 delivered on September 22, 1981

The guilty portion of the judgment below is reversed, and the case is remanded to the Seoul High Court.

The prosecutor's appeal is dismissed.

1. Prosecutor's grounds of appeal are examined.

According to the reasoning of the judgment below, while recognizing the fact that the defendant's 1/2 shares in the name of the defendant with respect to the land and building, which are the business property of the defendant and the non-indicted understand, have been disposed of arbitrarily without the consent of the court below, even if one of the partners disposes of his shares in the business property, it shall be limited to the case where he disposes of the business property itself, and since the proceeds from the disposal of his shares in the business property belongs to the disposal of the business property itself, even though the consumption of the above shares belongs to the disposal owner's own, the court below found the defendant not guilty of the facts charged that the defendant embezzled the above shares in voluntary consumption during the custody of 80,000,000 won received without the above understanding and understanding, since the business property belongs to the partnership property of the partner, and the partner who continues to exist in the business relationship has no right to dispose of the shares in the business property at will, and even if the partner arbitrarily disposes of the shares in the business property or in custody of the proceeds obtained from the disposal of the business property, it cannot be exempted from the crime of embezzlement.

However, according to the records, the agreement prepared between the defendant and the above understanding rules and the statement at the court of first instance and the court of original instance, gambling of the witness at the court of original instance, film, text, and testimony of understanding rules, the defendant's understanding rules shall evaluate 60,000,000 won in the site of this case owned by the defendant and the part of the building newly constructed at the time, and shall be operated together with the above understanding rules. 27,000,000 won in the existing bonds against the defendant under the above understanding rules shall be appropriated as investment, and 50% of the above real estate shall be secured as 50% of the above real estate, and it shall be hard to recognize that the defendant's above understanding of the principal and interest on the above real estate shall not have any influence on the conclusion that the above above understanding rules and the interest on the above 50% per annum of the court of first instance will be terminated within 4 months from the date of completion of the above registration of preservation of ownership, and it shall not be understood that the above 19, 14, 196th of the above investment trust agreement.

2. We examine the Defendant’s grounds of appeal (the grounds of appeal by the Defense Counsel Ba-won were submitted after the statutory period has expired). According to the court below’s determination, the building of this case purchased from the Defendant’s right to benefit, which the Defendant purchased from the Defendant’s right to benefit, was constructed on contract to the Nonindicted Party Han-young, and the Defendant’s right to benefit was determined as 9,350,000 won between the victim’s door-making, who lawfully acquired the right to the construction deposit and the above right to benefit, and the right to benefit was agreed to lease the above building to the Cho Chang-jo who leased the above building to the other party to the building, and grant the right to benefit as the security deposit and the rent to the Defendant. Meanwhile, if the Defendant acquired the above building site of the above building through the Han-gu Bank, was aware of the obligation not to infringe on the above right to benefit, or interfere with the exercise of the right to benefit, until the payment of the construction deposit was made, the judgment of the court below acknowledged that the above right to benefit was transferred to the Defendant’s property.

However, in the case of the crime of breach of trust, "the person who administers another's business" refers to a case where the principal content is that there is a duty to protect or manage another's property based on bilateral trust relationship. Thus, if the business is not another's business but for one's own business, it cannot be deemed that it is a person who administers another's business. Thus, in this case, the agreement that grants the above right to use and benefit from the building is a passive duty that the above right to use and benefit from the building is to lease the above building to the door-making in the way of the repayment of the construction cost, and the above obligation to assume the above content is not a duty to preserve the property of the door-making, but a simple obligation to cooperate with the above obligation to protect and manage the property of the door-making, and therefore it is difficult to view it as a person's business. Therefore, even if the above business is merely one of the above affairs, it cannot be viewed as a person's business, in violation of the legal principles as to the above obligation to repay the above debts to the defendant and thus it cannot be appropriated for the crime of breach of trust.

3. Therefore, without further proceeding to decide on the remaining grounds of appeal by the defendant's defense counsel. Of the judgment below, the part of conviction against the crime of breach of trust and the concurrent crime under the former part of Article 37 of the Criminal Act is reversed, and this part of the case is remanded to the court below and the prosecutor's appeal against the acquittal is dismissed. It is so decided as per

Justices Kim Jung-soo (Presiding Justice) and Lee Jong-young's Lee Jong-young