사용자가 근로자의 임금에서 원천공제한 기여금을 개인적 용도로 소비한 경우 업무상횡령죄의 성립 여부 - 금전의 위탁과 보관에 관한 판례 법리의 분석·검토를 겸하여

Since cash is classified as a movable property, in order for the ownership of cash to be transferred, either the requirements of agreement and delivery of possession must be met and a change in real rights occurs through a legal act, or a change in real rights must occur according to legal provisions through “mixture.” Even if the cash owned by A and the cash owned by B are mixed, by which A’s original ownership of the cash is extinguished, A may retain the amount corresponding to the amount originally held among the mixed cash pursuant to Article 258 and the latter part of Article 257 of the Civil Act. The consignor’s intention to entrust money with a limited purpose and use is to enable the trustee to use the money for the specified purpose and intended use, and usually to reserve ownership of the money to the consignor until the money is applied for the intended purpose and use. Therefore, it is difficult to believe that there is a real agreement regarding the transfer of ownership of money between the consignor and the trustee. Even if the entrusted cash and the cash originally held by the trustee are mixed, the consignor acquires ownership of the cash corresponding to the entrusted amount among the mixed cash, so the ownership of the money corresponding to the entrusted amount among the cash held by the trustee still belongs to the consignor, and the trustee, a person who keeps the consignor’s property, becomes the subject of the crime of embezzlement. Even if the consignor makes a bank transfer to the trustee’s financial account, it should be viewed likewise. When a person who has been delegated to handle affairs involving the receipt of money receives money from a third party at the behest of the mandator, ① if the mandatary receives money as the mandator’s agent, there is a relationship mediated by a property right between the mandator and the third party, and thus an in rem agreement and delivery are made and the ownership of the money is transferred from a third party to the mandator; ② and if the mandatary receives the money without acting on behalf of the mandator, if there is prior agreement regarding the transfer of ownership of the money and an agreement to amend possession between the mandator and the mandatary, even in an implicit manner, the ownership of the money is transferred from the third party to the mandator through the mandatary. Therefore, the mandatary becomes the subject of the crime of embezzlement as the person who keeps the money at the mandator’s demand. The money equivalent to the contribution deducted by the employer from the worker’s wages is originally the employer’s money, and it cannot be said that there is a real agreement on the transfer of ownership of the above money and an agreement on amendment of possession between the employer and the worker, and thus the ownership belongs to the employer. Since the employer cannot be considered as a person who keeps the worker’s property in relation to the above money, which belongs to the employer and whose form or method of custody is not specified, even if the employer does not pay the above money to the National Health Insurance Corporation and uses it for personal use, the employer’s such use of the money cannot be considered as the crime of business embezzlement.