[2] The case reversing the judgment below which acquitted the Defendant on the ground that the act of changing the name alone does not necessarily lead to the commencement of the crime of breach of trust, in case where the Defendant transferred the unauthorized building owned by the Defendant to A under the name of accord and satisfaction with the obligation owed by the Defendant to B, and transferred the above unauthorized building to B, and changed the name of the owner on the unauthorized building register to B, on the ground that the act of changing the name alone did not constitute the commencement of the crime of breach of trust

[2] The case reversing the judgment below which acquitted the Defendant on the ground that the act of changing the name alone cannot be deemed to have yet commenced the crime of breach of trust, in case where the Defendant transferred the unauthorized building owned by the Defendant to A under the name of accord and satisfaction, and transferred the said unauthorized building to B, and transferred the said unauthorized building under the name of accord and satisfaction, for which his wife bears the obligation to B, and the name of the owner on the unauthorized building ledger was changed to B

1. Summary of the facts charged and the judgment of the court below

The gist of the facts charged of this case is that the defendant prepared a housing site right certificate contract to transfer the unregistered building (hereinafter referred to as "the building in this case") under the name of the defendant to the non-indicted 2 under the name of the non-indicted 1's wife to the non-indicted 6,00,000 won for the repayment of debts to the non-indicted 2, and therefore, although the non-indicted 2 had a duty to allow the non-indicted 2 to exercise the ownership of the building in this case, the non-indicted 2 violated his duty and transferred the building in the non-indicted 3's non-indicted 3's non-indicted real estate agent office located in Seo-gu, Busan to the non-indicted 3 to purchase and sell the building in the name of the non-indicted 2, the non-indicted 2 did not have any property damage to the above non-indicted 6,00,000 won because the non-indicted 2 did not have any other property rights to the non-indicted 2 to the non-indicted 2 under the name of the government office.

2. The judgment of this Court

The above judgment of the court below is not acceptable for the following reasons.

The ledger of an unauthorized building is prepared and kept for the convenience of administrative affairs related to the maintenance of unauthorized buildings, and the alteration of rights to an unauthorized building arises or publicly announced by entry in the ledger. Thus, the mere fact that an unauthorized building ledger is registered as an owner does not have the effect of acquiring or presumed to have the ownership or other rights to an unauthorized building or having the right to such unauthorized building (see, e.g., Supreme Court Decisions 91Da29347, Feb. 14, 1992; 92Da36274, Jan. 26, 1993).

However, barring any special circumstance, the transferor of an unauthorized building is obligated to deliver the building to the transferee at the same time as the purchase price is received, and the transferee of an unauthorized building has the comprehensive authority to take measures for use and profit-making equivalent to ownership by occupying the unauthorized building upon delivery from the transferor (see Supreme Court Decisions 92Da32258, Nov. 10, 192; 92Da3258, Nov. 10, 1992). Thus, if the transferor transferred the unauthorized building to a third party against the transferee’s will while the transferor is obligated to deliver the building to the transferee at the time of receipt of intermediate payment or balance, and received the intermediate payment at the time of double payment, the act of breach of trust is an act of breach of duty in relation to the transferee. Furthermore, if the transferor received the balance from the third party and delivered the unauthorized building, it constitutes the completion of the crime of breach of trust (see, e.g., Supreme Court Decisions 84Do1814, Mar. 25, 2003>

However, according to the court below's findings, the defendant transferred the building of this case to the above non-indicted 2 as payment in lieu of the debt amount of 6,00,000,000 won that the non-indicted 1, his wife to the non-indicted 2. Meanwhile, according to the records, the above non-indicted 1 transferred the building of this case to the above non-indicted 3 again as payment in lieu of the debt amount of 20,000,000 won that the above non-indicted 3 had been borne by the above non-indicted 3. Thus, in light of the above legal principles, the defendant's act of transferring the building of this case to the above non-indicted 3 constitutes the commencement of the execution of the crime of breach of trust in relation to the non-indicted 2. Thus, if the defendant delivered the building of this case to the above non-indicted 3, it constitutes an attempted crime of breach of trust.

Therefore, the court below should have examined whether the transfer of the building of this case to the above non-indicted 3 was made into the payment of debt to the above non-indicted 3, and whether the defendant delivered the building of this case to the above non-indicted 3, and determined whether the defendant's act constitutes the crime of attempted breach of trust or the crime of breach of trust. However, the court below decided that the defendant's act does not constitute the commencement of the execution of the crime of breach of trust only for the reasons as stated in its holding. Thus, the court below erred by misapprehending the legal principles on the crime of breach of trust, which affected the conclusion of the judgment. The appeal pointing this out has merit.

3. Conclusion

Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Han-won (Presiding Justice)