Open Decision Ledger · Tax & international taxation
Embezzlement by pledging property held and refusing its return
Supreme Court, Feb. 12, 2026, 2025Do18126 (judgment)
No holding summary · checked against points at issue. The official text publishes no summary of the holding for this decision. The quotation and factors in this record are copied verbatim from the points at issue; the evidence for each axis is taken from the points at issue, the order and the reasons.
Case name: 횡령·절도·조세범처벌법위반·특수상해·컴퓨터등사용사기·여신전문금융업법위반·사기미수
Official text on the National Law Information Center
Question
Where a person holding another's property pledges it without the owner's consent, does embezzlement arise although no infringement of ownership results, and does refusing to return the property after a lease ends amount to the refusal of return required by Article 355(1) of the Criminal Act?
Holding
Yes to both. Embezzlement protects the owner's proprietary rights and is complete as a risk offence once they are endangered, so a custodian's pledge given without consent expresses the intent of unlawful acquisition and constitutes the offence whether or not the pledge is void in law or infringes ownership. 'Refusal of return' means an act expressing an intention to exclude the owner's rights over the property held; a bare refusal alone is not enough, but where the reasons for the refusal and the subjective intent bring it to the degree of the same as an embezzlement act, the offence is complete, and an intention to return, compensate or preserve the property afterwards does not prevent a finding of the intent.
Points at issue, verbatim
횡령죄가 위태범인지 여부(적극) 및 보관 중인 타인의 재물을 담보로 제공하는 행위가 그 재물에 대한 소유권 침해의 결과가 발생하지 않더라도 횡령죄가 성립하는지 여부(적극)
Unofficial English translation
Whether embezzlement is an endangering offense (affirmative) / Whether an act of providing another's property held in custody as security constitutes embezzlement even if no result of infringement of ownership over that property occurs (affirmative)
Disposition
Reversed and remanded Stated in the decision
원심판결을 파기하고, 사건을 대전지방법원에 환송한다.
Unofficial English translation
The judgment of the court below is reversed, and the case is remanded to the Daejeon District Court.
Form of the test
Elements stated Stated in the decision
형법 제355조 제1항에서 정하는 ‘반환의 거부’라고 함은 보관물에 대하여 소유자의 권리를 배제하는 의사표시를 하는 행위를 뜻하므로, 타인의 재물을 보관하는 자가 단순히 반환을 거부한 사실만으로는 횡령죄를 구성하는 것은 아니지만, 반환거부의 이유 및 주관적인 의사 등을 종합하여 반환거부행위가 횡령행위와 같다고 볼 수 있을 정도에 이른다면 횡령죄가 성립한다
Unofficial English translation
The 'refusal to return' prescribed in Article 355 paragraph (1) of the Criminal Act refers to an act of making a declaration of intent to exclude the rights of the owner in respect of the property held in custody; therefore, the mere fact that a person holding another's property in custody simply refused to return it does not constitute embezzlement, but if, taking into consideration the reason for the refusal to return and the subjective intent and other circumstances, the act of refusal to return has reached a degree that can be regarded as the same as an act of embezzlement, embezzlement is established
Factors
- 횡령죄가 위태범인지 여부(적극)
- 보관 중인 타인의 재물을 담보로 제공하는 행위가 그 재물에 대한 소유권 침해의 결과가 발생하지 않더라도 횡령죄가 성립하는지 여부(적극)
- 형법 제355조 제1항에서 정하는 ‘반환의 거부’의 의미
- 횡령죄에서 불법영득 의사의 의미 및 횡령한 재물을 사후에 반환하거나 변상, 보전하는 의사가 있더라도 불법영득의 의사를 인정할 수 있는지 여부(적극)
- 항소심이 유죄로 인정한 죄와 무죄로 인정한 죄가 형법 제37조 전단의 경합범 관계에 있는 경우, 파기의 범위
Unofficial English translation
• Whether embezzlement is an endangering offense (affirmative)
• Whether an act of providing another's property held in custody as security constitutes embezzlement even if no result of infringement of ownership over that property occurs (affirmative)
• The meaning of 'refusal to return' as prescribed in Article 355 paragraph (1) of the Criminal Act
• The meaning of the intent to unlawfully acquire property in embezzlement and whether such intent may be recognized even where a person intends to return, compensate for, or preserve the embezzled property afterward (affirmative)
• Where the offense found guilty by the appellate court and the offense found not guilty stand in the relationship of concurrence of offenses under the former part of Article 37 of the Criminal Act, the scope of reversal
Relation to precedent
Follows earlier decisions Stated in the decision
대법원 2002. 11. 13. 선고 2002도2219 판결(공2003상, 123)
Unofficial English translation
Supreme Court Decision 2002Do2219 decided November 13, 2002 (Gong 2003 Sang, 123)
Decisions referred to
[1] 대법원 2002. 11. 13. 선고 2002도2219 판결(공2003상, 123) / [2] 대법원 2002. 9. 4. 선고 2000도637 판결(공2002하, 2374), 대법원 2014. 3. 13. 선고 2013도15345 판결 / [3] 대법원 2009. 12. 10. 선고 2009도1166 판결
Burden of proof
Not addressed Not in the decision
Open question and revisit condition
If the defendant had paid the overdue lease charges and returned the vehicle soon after the demand, leaving only an intention to restore it afterwards, what more would make the refusal an embezzlement act?
The remand judgment on the two counts will show how the risk-offence character of embezzlement and the refusal test apply in practice. A later decision treating the pledge of property held in custody, or the intent of unlawful acquisition, differently, or an amendment to Article 355(1) or Article 37 of the Criminal Act, requires this entry to be read again.
Cross-family AI independent reading & axis check
7 of 8 axes matched GPT-6 Astra (OpenAI, codex CLI) · 2026-10-24
A reader from another model family (GPT-6 Astra), given the official text but not the primary reading, agreed on 7 of the 8 axes; the readings differed on axis 8 (open question and revisit condition).
Axis 8 (Open question and revisit condition): Primary “If the defendant had paid the overdue lease charges and returned the vehicle soon after the demand, leaving only an intention to restore it afterwards, what more would make the refusal an embezzlement act?” vs Independent “Will the remand court ultimately find that the refusal to return the leased vehicle manifested an intent to appropriate it?”
The primary asks what additional circumstances would establish embezzlement after prompt payment and return, while the independent asks what the remand court will ultimately find about the actual refusal.
횡령죄가 위태범인지 여부(적극) 및 보관 중인 타인의 재물을 담보로 제공하는 행위가 그 재물에 대한 소유권 침해의 결과가 발생하지 않더라도 횡령죄가 성립하는지 여부(적극)Raw responses and comparison record: Protocol · Blind readings (JSONL) · Axis comparison (JSONL) · SHA-256 (JSON)
Lower-court contrast & scope of application
Lower-court reading vs. Supreme Court holding
Lower-court context: The Daejeon District Court, sitting on appeal, in its judgment of 15 October 2025 (2025No1825, 1936), acquitted the defendant of the count of embezzlement charged on 20 June 2023, holding that providing the leased vehicle as security was an act whose legal effect could not arise or which could not infringe the victim company's ownership. It also acquitted the count charged in November 2023, because it was unclear whether the defendant had defaulted on monthly lease payments on two or more consecutive occasions, and because he believed paying the unpaid charges soon would resolve everything. The remaining charges it found guilty.
Supreme Court standard: The Supreme Court held that both acquittals rested on a misreading of the law on the embezzlement act and the intent of unlawful acquisition, a fault that affected the judgment. It found no error in the convictions on the remaining charges, and treated the complaint about the severity of the sentence as a ground barred by Article 383(iv) of the Criminal Procedure Act, which allows it only where death, life imprisonment, or imprisonment or detention of ten years or more has been imposed. Because the counts found guilty and not guilty stand in concurrence under the first sentence of Article 37 of the Criminal Act and one sentence has to be imposed on all of them, the whole judgment was reversed and the case remanded to the Daejeon District Court.
Distinguishing conditions
- A pledge given by someone who was not holding another's property in custody.
- A bare refusal to return, where the reasons for the refusal and the subjective intent do not bring it to the degree of the same as an embezzlement act.
- An appeal in which the counts found guilty and those found not guilty do not stand in concurrence under the first sentence of Article 37 of the Criminal Act.
Record verification notes
Set the file against the circumstances the Court relied on for the refusal: the lease terminated for arrears, the repeated demands for the vehicle, the complaint for embezzlement, months of refusal without paying the arrears, and the defendant's statement to the police on 19 April 2024. Then check whether the counts found guilty and those found not guilty stand in concurrence under the first sentence of Article 37 of the Criminal Act, since the scope of the reversal follows from that. A sentence of death, life imprisonment, or imprisonment or detention of ten years or more makes a complaint about severity admissible under Article 383(iv) of the Criminal Procedure Act.
From the official text
Points at issue
[1] 횡령죄가 위태범인지 여부(적극) 및 보관 중인 타인의 재물을 담보로 제공하는 행위가 그 재물에 대한 소유권 침해의 결과가 발생하지 않더라도 횡령죄가 성립하는지 여부(적극) [2] 형법 제355조 제1항에서 정하는 ‘반환의 거부’의 의미 / 횡령죄가 성립하는 반환거부행위의 정도 / 횡령죄에서 불법영득 의사의 의미 및 횡령한 재물을 사후에 반환하거나 변상, 보전하는 의사가 있더라도 불법영득의 의사를 인정할 수 있는지 여부(적극) [3] 수개의 범죄사실 중 일부에 대하여는 유죄, 나머지에 대하여는 무죄를 선고한 항소심 판결에 대하여 피고인 및 검사 쌍방이 상고를 제기하였으나 유죄 부분에 대한 피고인의 상고는 이유 없고 무죄 부분에 대한 검사의 상고만 이유 있고, 항소심이 유죄로 인정한 죄와 무죄로 인정한 죄가 형법 제37조 전단의 경합범 관계에 있는 경우, 파기의 범위
Unofficial English translation
[1] Whether embezzlement is an endangering offense (affirmative) / Whether an act of providing another's property held in custody as security constitutes embezzlement even if no result of infringement of ownership over that property occurs (affirmative) [2] The meaning of 'refusal to return' as prescribed in Article 355 paragraph (1) of the Criminal Act / The degree of acts of refusal to return that give rise to embezzlement / The meaning of the intent to unlawfully acquire property in embezzlement and whether such intent may be recognized even where a person intends to return, compensate for, or preserve the embezzled property afterward (affirmative) [3] Where, against a judgment of the appellate court convicting the defendant on some of several charged facts and acquitting him on the remainder, both the defendant and the prosecutor filed final appeals, but the defendant's final appeal as to the portion on which he was convicted is groundless and only the prosecutor's final appeal as to the portion on which he was acquitted is well-grounded, and the offense found guilty by the appellate court and the offense found not guilty stand in the relationship of concurrence of offenses under the former part of Article 37 of the Criminal Act, the scope of reversal
Summary of the holding
The official text publishes no summary of the holding for this decision. The quotation and factors in this record are copied verbatim from the points at issue; the evidence for each axis is taken from the points at issue, the order and the reasons.
Order
원심판결을 파기하고, 사건을 대전지방법원에 환송한다.
Unofficial English translation
The judgment of the court below is reversed, and the case is remanded to the Daejeon District Court.
Provisions referred to
[1] 형법 제355조 제1항 / [2] 형법 제355조 제1항 / [3] 형법 제37조, 형사소송법 제383조, 제391조
Read 2026-10-24 · Cross-read 2026-10-24. All quotes matched against the official text. The Chinese-character placeholders the court used for anonymised parties are given in their Korean readings, and parenthetical Chinese-character glosses are omitted.
Every entry is published only after all quotes have been matched character by character against the official text, and audited by an independent second reading from a different model family across all eight axes. Both agreed axes and text-grounded interpretive divergences are recorded openly. The ledger is a research record, not an assessment of the court or advice on any matter.
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