횡령죄 주체인 보관자와 위탁관계 - 대법원 2018. 7. 19. 선고 2017도17494 전원합의체 판결을 중심으로 -

Abstract

This study focuses on the rulings of The Supreme Court of Korea on entrustment relation required to punish embezzlement. Criminal Act of Republic of Korea Article 355(1) provides that a person who, having the custody of another's property, embezzles or refuses to return it, shall be punished by imprisonment for not more than five years or by a fine not exceeding 15 million won. The Supreme Court holds the opinion that ⓐ ‘a person having the custody of another's property’ is interpreted to require entrustment relation with the victim and ⓑ entrustment relation can arise not only from contract but also from management of affairs(Civil Act of Republic of Korea Article 734), custom, sound reasoning and the principle of trust and good faith. As entrustment relation does not require contract it is not easy to tell whether a custody of another's property shall be classified as entrustment relation or not. Even Supreme Court Decision(Case no. 2017Do17494) has three opposite opinions on the existence of entrustment relation between a bank account holder and a so-called voice phishing victim. In legal practice the confusion is being intensified. In essence entrustment relation arising from management of affairs, custom, sound reasoning and the principle of trust and good faith means that the custodian is obligated to return another's property to a rightful person. Therefore if the Supreme Court hopes that its opinion on entrustment relation can be more logical then ‘a person having the custody of another's property’ should be interpreted to require not entrustment relation with the victim but obligation to return to the victim. Both of the standards have the same results but the latter one is simpler and clearer than the former one is. And the contractual entrustment relation should function as circumstances in the examination of embezzlement.