[2] The case affirming the judgment below holding that the crime of breach of trust is not established in case where the defendant purchased real estate from Gap and provided a collateral security for another purpose immediately after the transfer of ownership, in case where the defendant purchased the real estate, and immediately pays the down payment, he received the ownership transfer to the defendant, received the loan as a collateral, and agreed to restore the remaining purchase and sale to the original state if he did not obtain the

[2] In a case where the defendant purchased forest land from Gap, and received ownership transfer of the forest land in the future, and agreed to obtain a transfer of the down payment and obtain a loan of the forest land as security within a certain period under the responsibility of the defendant, and if the construction permit is not granted, the contract is cancelled and restores it to the original state, the case affirmed the judgment below which held that the defendant did not constitute a crime of breach of trust on the grounds that even if the defendant provided the forest land as security on the date of the registration of transfer of ownership, provided the fund as security, performed the same work, and did not pay the financed fund to Gap, even if he did not do so, it cannot be deemed that the person who administers another's business, did not perform any act in violation of his duties, and that the act of offering such security, etc. was performed under the condition that the defendant did not actually bear the obligation to return the forest land

1. As to the Defendant’s ground of appeal

In light of the evidence duly admitted by the lower court and the lower court’s determination that each of the facts charged of fraud of this case is justifiable, and contrary to what is alleged in the grounds of appeal, the lower court did not err by misapprehending the logical and empirical rules and exceeding the bounds of the principle of free evaluation of evidence, or by failing to exhaust all necessary deliberations, or by misapprehending the legal doctrine.

Meanwhile, under Article 383 subparag. 4 of the Criminal Procedure Act, an appeal on the grounds of unfair sentencing is allowed only in cases where death penalty, life imprisonment, or imprisonment or imprisonment without prison labor for not less than ten years has been imposed. Thus, in this case where a more minor sentence has been imposed on the defendant, the argument that the amount of punishment is unreasonable is not

2. As to the Prosecutor’s Grounds of Appeal

A. The summary of the facts charged as to the violation of trust of this case is as follows.

On February 15, 2007, the Defendant agreed to purchase the forest land of this case (hereinafter “the forest of this case”) of 970 square meters (hereinafter “the forest of this case”) from the victim Nonindicted 1 at the ○○ consulting office located in Busan Metropolitan City (hereinafter omitted) on the purchase price of KRW 146 million and paid down payment of KRW 30 million in the name of the Defendant immediately. The Defendant entered into the registration for the transfer of ownership as soon as the down payment is paid. The remainder shall be paid within 15 days upon receipt of the change of form and quality and the construction permit under the responsibility of the victim, and the Defendant agreed to pay the forest of this case as collateral and restore it to its original state without the construction permit.

On February 16, 2007, the Defendant paid a down payment of KRW 30 million to the victim and transferred the ownership of the forest of this case in the future of the Defendant. Accordingly, upon obtaining a building permit, the Defendant received a bank loan as collateral and paid the balance to the victim, or, if not, did not obtain a building permit, there was a duty to preserve the ownership of the forest of this case so that the ownership of the forest of this case can be restored to the victim.

On the same day, the Defendant, in violation of the aforementioned duties, set up the right to collateral security of KRW 70 million with the maximum debt amount to Nonindicted 2, and again, on March 5, 2007, set up the right to collateral security of KRW 270 million with the maximum debt amount to Nonindicted 3 and two other persons on March 5, 2007, thereby acquiring the pecuniary benefits equivalent to KRW 270 million with the maximum debt

B. On the following grounds, the first instance court rendered a not-guilty verdict on the charge of breach of trust on the ground that the defendant cannot be deemed as a person in charge of the victim non-indicted 1’s affairs, and the lower court also determined that the first instance court’s measures are justifiable and acceptable.

In other words, if the defendant's duty to pay the balance to non-indicted 1 or the future sales contract is cancelled, the prosecutor identified the duty to restore the real estate of this case to non-indicted 1 as another person's business and prosecuted the defendant who violated such duty.

However, in the real estate sales contract, the buyer's obligation to pay the purchase price is not the seller's business but the buyer's own business. Therefore, the defendant's obligation to pay the remaining purchase price is delayed, and the defendant cannot be held liable for the crime of breach of trust.

Furthermore, the obligation to change the form and quality of the forest of this case and the obligation to obtain a building permit for the forest of this case, even if stated in the facts charged, has to be fulfilled first before the Defendant pays the remainder of the sale. However, if Nonindicted Party 1 breached such obligation, the Defendant may cancel the sales contract of this case on the ground of his nonperformance (see Articles 5 and 6 of the real estate sales contract of this case) and claim for the amount of compensation for damages, etc. from the Defendant. Meanwhile, as long as Nonindicted Party 1 fails to perform his prior performance obligation, the sales contract may not be rescinded in principle as long as he did not perform his prior performance obligation. However, the sales contract may be rescinded by paying KRW 60,000,000,000 won of the down payment before the commencement of the contract, such as payment of the balance, etc. by the Defendant, but on the record, Nonindicted Party 1 did not cancel

As such, in a situation where the real estate sales contract for the instant forest is maintained without being rescinded and the duty to restore is not specifically created, it cannot be deemed that there is a legal, contractual or good faith obligation under the law, contractual or good faith principle that the buyer has to fully preserve the ownership of the real estate acquired and completed the registration in preparation for the termination of the contract that may occur in the future.

In addition, according to the records of this case, it is recognized that the Defendant agreed to pay the balance of the forest land of this case by receiving the loan from the bank right, etc. as security after paying the down payment only with Nonindicted Party 1 and completing the registration of ownership transfer. Therefore, it cannot be deemed that the Defendant offered the forest land of this case as security by borrowing money from Nonindicted Party 2, 3, etc., as stated in the facts charged. However, even though it is reasonable for the Defendant to pay the balance with the money borrowed as above, it is likely to criticize the Defendant’s failure to do so. However, this is merely a delay in the buyer’s duty to pay the remainder of the purchase price, and it is not deemed that the buyer’s duty to pay the remainder of the purchase

C. From the point of trust, from the point of view of criminal punishment on the intentional external aspect of a certain fiduciary relationship, even if a seller has a benefit in the satisfaction of a contractual right with respect to the payment of the price by a purchaser in real estate sale, the payment of the price is performed as a legal obligation of the purchaser, and a fiduciary relationship exceeding the interest-based relationship in an ordinary contract with respect to the handling of the affairs cannot be said to arise between the parties concerned. Accordingly, the payment of the price is not a fiduciary relationship with respect to the seller entrusted to the buyer based on the fiduciary relationship between the parties, but rather a fiduciary relationship with respect to the buyer

In addition, if a seller has completed the registration of ownership transfer on an object in the future with the buyer’s failure to pay the price in full, it shall be deemed that the seller abandons the guarantee of receipt of the price prepared by the right to defense of simultaneous performance by the seller at his/her own will, and barring any special circumstances, it shall be deemed that the buyer voluntarily takes over the risk of not receiving the price. In addition, even if the buyer, who acquired the real estate in advance, provided it as a security and agreed to prepare funds for the payment of the purchase price and to pay the balance to the seller by providing it to the seller, this is basically a way for the buyer to secure financial resources of the purchase price, and it shall not be deemed that the buyer takes charge of

In light of the above legal principles, even though the Defendant provided funds as security on the day when the ownership transfer registration was completed pursuant to the instant sales contract, and thereafter had the same day thereafter, even if the financed funds were not paid as sales price to Nonindicted 1, it cannot be deemed that the seller did an act in violation of his/her duty. This does not change to the extent that such an act in providing security was performed without the Defendant’s actual obligation to return the forest land of this case to Nonindicted 1.

In the same purport, the court below is just in maintaining the judgment of the court of first instance which acquitted the defendant on the charge of the breach of trust of this case. Contrary to the allegations in the grounds of appeal, the court below did not err by misapprehending the law of logic and experience and exceeding the bounds of the principle of free evaluation of evidence or by misapprehending the legal principles

On the other hand, the prosecutor appealed the remaining guilty portion of the judgment of the court below, but there is no indication of the grounds for appeal in the petition of appeal nor any statement of grounds for appeal in the appellate brief.

3. Conclusion

Therefore, all appeals are dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Ji-hyung (Presiding Justice)