불법원인위탁과 횡령죄

Illegal Cause Bailment and Embezzlement

The precedents and the theories in Korean civil law hold that a person who has transferred property for illegal cause or in consideration of an illegal contract, because of the illegality, cannot reclaim the property or the ownership thereto. It follows that the grantee has full ownership over the property. According to these precedents and theories, the grantee is not a bailee. Based on this, the majority in criminal law states that the grantee can never be guilty of embezzlement. Further, these theories treat the situation of bailment, where the transferor does not intend to transfer the ownership, but simply entrust the property for bailment, in the same way. An example of such situation would be where one entrusts a messenger with bribery money for delivery to a government official. However, although it is a minority position, some argue that grant with illegal cause and bailment with illegal cause be distinguished and treated differently. In my view, while the legal theory that the grantee has ownership over the transferred property is based on the principle of trust and good faith, the application of such theory should be limited because it interferes with the legitimate ownership rights of the grantor. Accordingly, the definition of the term grant should be strictly construed, and be applied only when the grantor’s ownership rights cannot be denied under the principle of trust and good faith. In contrast, bailment cannot be construed as grant because there is no intent to transfer ownership, and, accordingly, it does not violate the principle of trust and good failth or the principles of equity to deny ownership to the bailee. I therefore agree with the minority that ownership remains with the bailor. There are also theories, holding that, while distinguishing illegal cause bailment from grant, there cannot be embezzlement on the part of the bailee. These theories are based on the concept that there is no trust relationship between bailor and bailee, when the subject matter of the bailment is illegal. However, there is a consensus among scholars that, even when the underlying contract is null and void or canceled, there is “a de facto trust relationship,” thereby creating embezzlement liability on the part of the bailee. Given this, there is no reason to argue that there is no trust relationship only in illegal cause bailment. More substantially, embezzlement is a crime committed by a person who has been entrusted with another’s property by illegally depriving the property rights, not by breaching the trust. Accordingly, there can be embezzlement liability in illegal cause bailment.