횡령한 부동산에 대한 횡령죄의 성립 여부

Abstract

In case that a consignee who had pledged a mortgage over the realty under consignment agreement, places the same realty under the mortgage again or sells it to the 3rd party, the first mortgage constitutes an embezzlement. Then, can the second mortgage or the sales in the above transaction can constitute another embezzlement ?The Supreme Court ruling regards the second mortgage or sales in the forementioned example as unpunishable post-activities,which accordingly cannot constitute an embezzlement again. However, as the second action satisfies all the requirements of an embezzlement, it seems more appropriate to constitute additional embezzlement for the post-activity separate from the first. Such reasoning would prevent unreasonable outcomes where the second action requiring more severe punishment than the first action could avoid punishment.