횡령죄에 있어서의 상계충당과 불법영득의사의 존부

Abstract

In this article, it is researched whether appropriation of setoff or denial of return based on it means there is an intention to have unlawful acquisition in embezzlement cases. The ownership of the mandated money with specific purposes should be reserved to the truster and the ownership of the money the delegate, whose job is specifically related to dealing with money, acquired from the third party belongs to the person who delegated him unless there are special conditions. If the trustee in the former case does not spend the money for its purpose and makes an appropriation of setoff or refuses to return the money at his will on the ground that he holds a bond to the truster, it is at least against the implied special agreement of the setoff prohibition. Hence there is no due course for the trustee. There is no due course either, if the delegate in the latter case does not give the money to its owner, making an appropriation of setoff or refusing to return it based on his bond. Therefore it can be said there is an intention to have unlawful acquisition in both cases. However, if the trustee or the delegate makes it clear that he has an intention to do setoff and it is within his power, there is no intention to have unlawful acquisition. The court rules that it constitutes an offense of embezzlement in the similar cases. Though the court does not give specific reasons for its decision, it is assumed that the court is on the premise that there is a special agreement of the setoff prohibition.