제3채무자의 착오로 인해 이뤄진 변제공탁의 공탁금을 수령한 채무자의 반환거부와 횡령죄 성부

Despite prohibition, whether the defendant have the right to receive compensation of land, deposit for payment based on the ownership is the starting point of the discussion of embezzlement. The spirit of the provisions of the Civil Execution Law is not on denial of the ownership itself but on the conservation of non-exempt property through foreclosure. Therefore, if the third debtor has made a deposit for payment, to admit the right to receive payment to the debtor is reasonable. Effect of the disposal ban is an essential effect of foreclosure, because only that in order to satisfy the monetary claims of creditors, prohibits the disposal of the debtor of the subject property, and to maintain its exchange value. Therefore, ownership of itself debtor admit, it can be understood by prohibiting the disposal. Deposit is, those depositors is at your own risk, it is determined whether the payment should be made to people in its own way, deposit for execution or enforcement, deposit for payment deposit. The judicial enforcement for deposit for execution applies equally to the deposit for payment. Then legal effect of deposit receipt of the accused does not change. As a result, the debtor who receives deposit for payment made ​​by the mistake of the third debtor, even refused to return the deposit money, embezzlement does not hold.