부동산이 횡령죄의 행위객체에 포함되는가?

Real property is naturally included in the objects of conduct in the crime of embezzlement by the Korean legal theory and cases. Such interpretation, however, is not appropriate. The reason is because the Article 355(1) of the Criminal Act defining the crime of embezzlement limits the property to be the one in custody by another person. Therefore, property as the object of conduct in the crime of embezzlement should be the one which can be in custody. However, real property can be ‘managed’ but not ‘in custody’, and thus it cannot be considered as the object of conduct in the crime of embezzlement. Meanwhile, legal theory and cases decide the property custodian’s status based upon the existence of the authority to dispose the real property to a third party, but not the custody in case of the crime of embezzlement involving transfer for security or title trust. Such legal principle does not comply with the statements in the crime of embezzlement provided by the Criminal Act and is not different from making a law for a new type of crime of embezzlement. In many cases it is proper that theories and cases construe the matter of real property embezzlement as the crime of breach of trust. The Supreme Court’s en banc decision that another embezzlement was established subsequent to the establishment of a crime of embezzlement rather than treating the same as unpunishable identified the proprietary interest of the real property as the object of conduct, but it is judged (by the writer) that it would have been proper to apply the crime of breach of trust there. The Supreme Court decided that the disposal by trustee in the title trust, where the intermediate title registration was omitted, did not constitute the crime of embezzlement, thereby blocking the constitution of the crime of embezzlement in a real property title trust cases. Furthermore, in the case of the disposal of title-trusted vehicle, the Court ruled that the trustee company holding the title of the vehicle did not, but the vehicle owner in actual custody of the vehicle had the status of custodian; and thus the Court abandoned a legal principle that the status of custodian should be decided based on who has the authority to dispose the property to a third party. These series of en banc decisions by Supreme Court demonstrate that the time has come to reconsider legal theory and cases that real property is included in the objects of conduct in the crime of embezzlement.