Whether the act of establishing a collateral security after offering the goods of a factory foundation under the Factory Mortgage Act to another person as collateral constitutes embezzlement.

Even if the machinery constituting a factory foundation was provided to another person as a security by means of transfer pursuant to the Factory Mortgage Act, the above transfer is null and void in light of the strongness of the Factory Mortgage Act, so the transferor's act of establishing a new mortgage on the said machinery does not constitute embezzlement.

Article 18 of the Factory Mortgage Act, Article 355 of the Criminal Act

Defendant

Attorney (Li Pawn) Balle, Yaba

Seoul Criminal Court Decision 74No7542 delivered on July 1, 755

The original judgment is reversed, and the case is remanded to the Panel Division of the Seoul Criminal Court.

The grounds of appeal by defense counsel are examined.

In the case of Article 18 of the Factory Storage Act, it is reasonable to interpret that the act belonging to a factory foundation is null and void in light of the nature of the Factory Mortgage Act, by taking the fact that it is punished (Article 64).

However, the original judgment recognized that the Defendant had had his original machinery as a security for transfer with the testimony relation to the Non-Indicted Party, even though it had re-mortgaged, and made a decision on the responsibility of embezzlement in the original case.

However, according to the records, it can be recognized that the machinery as seen in this case constitutes a factory foundation and was mortgaged at the Industrial Bank of Korea under the Factory Mortgage Act, so even if the defendant transferred such machinery to the present line, its transfer cannot be deemed null and void, and thus, it cannot be deemed that it goes beyond the ownership of the machinery. Thus, it cannot be said that the ownership of the machinery goes beyond the non-indicted No. 1. Then, it cannot be said that the defendant did not have taken over the ownership of the machinery in this case to the non-indicted No. 1. Then, the court below did not review the above decision, or did not err in matters of law by misunderstanding the legal principles of embezzlement.

Therefore, since the arguments return to the reasonable ground, if the original judgment did not reverse the judgment, and the original judgment shall return it to the original court for further proceedings consistent with the original judgment. It is so decided as per Disposition by the assent of all participating Justices.

Justices Kang Jeong-hee (Presiding Justice)