The Criminal Liability in the Case where the Transferor of the Nominated Claim has Received and Consumed Reimbursement before the Notice of Transfer

Abstract

The court have acknowledged that if the transferor of bond received and consumed money, which is a reimbursement, from the debtor before the notification of transfer, the transferee has the ownership of the money and the transferor in the custody of the money and the transferor is guilty of the embezzlement, but lately denied all of it in this case. The majority opinion discussed whether to apply the ownership of money under criminal law, which is different from that under civil law. But, in this case, even if the reimbursement is not money, ownership belongs to the transferor, so it is reasonable to assume that ownership belongs to the transferor without discussing the concept of ownership of money under civil law. Recently, the court, distinguishing between the main benefit obligations and incidental obligations in the contract, recognized the breach of trust only in the case of non-fufillment of the main obligations. The majority in the case denied the breach of trust, adopting that theory. However, the court recognizes the storage duty under the principle of good faith in the case of embezzlement, and admitted that duty even in the case of a mistaken remittance, which is the case of no duty under the principle of good faith in the civil law because there is no transaction relationship at all. However, even in the civil law, in the case of subsidiary obligations recognized under the principle of good faith, they are not recognized as storage obligations under the Criminal Act. All of this goes against the unity of the legal system and the trust of the parties. In the case of additional obligations under the principle of good faith, which is recognized under civil law, it is considerable to recognize the obligation in the case of embezzlement or breach of trust in light of legal relations and the will of the parties of the case. That theory should be adopted in this case. However, since the ownership of the reimbursement product of the bond transferee is not recognized, it is quite considered as a breach of trust.