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TITLE 【Syllabus of Latest Opinion】Supreme Court en banc Decision 2016Do18761 Decided February 18, 2021【Fraud; Embezzlement】 [full Text]
Summary
[1] Meaning of “custody” as referred to in the crime of embezzlement
Whether a legal and de facto entrustment relation required for the constitution of embezzlement is limited to that based on trust worthy of protection against embezzlement (affirmative) and standard of determining whether an entrustment relation exists
[2] In the case of a so-called bilateral title trust that a title truster transfers the name in the registration of real estate owned by him/her to a title trustee in violation of the Act on the Registration of Real Estate Under Actual Titleholder’s Name, whether the title trustee is in the position of “a person who has the custody of another’s property” in the relationship with the title truster (negative), and in such a case, if the title trustee arbitrarily disposes of the real estate in trust, whether embezzlement can be constituted in the relationship with the title truster (negative)
Whether such legal doctrine is likewise applicable to the case where the act of disposal is performed after a title trust agreement and a change in the real rights to the real estate by a registration made according thereto became null and void as the title trust of the real estate was performed before the enforcement of the same Act and the real-name registration has not been made within the grace period stipulated in the same Act (affirmative)
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