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The prosecutor's appeal is dismissed.
Reasons
1. The land indicated in the summary of the grounds for appeal (hereinafter “instant land”) is the property that the Defendant acquired prior to entering into a business agreement with the victim, and the title trust agreement between the Defendant and the victim was not concluded separately from the said business agreement.
Even if the title trust relationship is recognized, the Defendant entered into a partnership agreement with the victim to distribute the profit accrued from the resale of the instant land, so the resale price should be deemed as the business property.
Therefore, the crime of embezzlement is established against the act of this case where the business property is arbitrarily consumed.
Nevertheless, the lower court found the Defendant not guilty. In so doing, the lower court erred by misapprehending the facts.
2. Determination
A. In a case where the purchaser acquired the ownership of a real estate as a partnership’s property for the purpose of running a joint business by mutual investment, the combination is naturally owned by the partnership pursuant to Article 271(1) of the Civil Act. However, if the partnership did not make a joint registration and instead made a registration of ownership transfer in the name of one partner, it shall be deemed that the partnership held a title trust with the partnership members (see Supreme Court Decision 2003Da25256, Apr. 13, 2006). In addition, the Act on the Registration of Real Estate under Actual Titleholder’s Name (hereinafter “Real Estate Real Name Act”).
Comprehensively taking account of subparagraphs 1 (main sentence), 2, and 3 of Article 2, the term "title trust agreement" in the same Act means cases where a person who holds, or has actually acquired or is to acquire, ownership or other real rights to real estate, holds or is to hold the real right to real estate externally between another person (title truster) and the title truster, and the registration thereof is made in the form of delegation or consignment, or through ratification, under the name of the title trustee.