형법의 소유 개념으로서 “재물의 사실상 또는 법률상 지배력 있는 상태” - 대법원 2015. 6. 25. 선고 2015도1944 전원합의체 판결 -

Abstract

In supreme court 2015. 6. 25. sentenced 2015do1944 decision, supreme court declared unanimously that the crime of car embezzlement is guilty. This supreme court new decision states that the practical owner virtually possessed a motor vehicle, even though he was not a name holder of the car registration is real owner, It’s more reasonable than the precedents in a practical point of view. In the case that a motor vehicle is disposed of without consent of its owner, by a defendant to whom it was entrusted, it becomes an issue whether the defendant is guilty of the crime of embezzlement. The most important things is whether the embezzler had a name holder of the car registration or not. In the embezzlement of real estate cases, the Supreme Court states that only name holder of the real-estate has status of possession. The Supreme Cour applied the same principle to the cases of car embezzlement, too. I want this conclusion of supreme court 2015. 6. 25. sentenced 2015do1944 decision to be extended to the general issue. Criminal law is to protect the actual owner. It is not the only owner of the civil law to become a true owner. If there is objective substance of ownership, criminal law should be protected. The Korean embezzlement regulation is different from Germany. The German Criminal Act punishes only embezzlement of movable property. The German Civil Act requires notarization of real estate contracts. However, the Korean Civil Act does not require notarization in real estate contracts. Therefore, the situation in Korean criminal law and German criminal law are different. German criminal law sets ownership in accordance with the German Civil Act. However, the Korean criminal law has to set the owner independently regardless of civil Act. The transfer of ownership of the German Civil Act and the Korean Civil Act are completely different. In addition, the duties of criminal law and civil law are different.