A defendant shall be punished by imprisonment for not less than one year and six months.

However, the execution of the above punishment shall be suspended for two years from the date this judgment became final and conclusive.

To order the accused to provide community service for 160 hours in nature protection activities or welfare facilities and group service activities.

A. Summary of the facts charged

The Defendant, on June 19, 2005, purchased approximately 15,000 square meters of land owned by the victim and approximately 2.1 billion won of the attached building (hereinafter “the instant real estate”), 70 million won, and 1.7 billion won of the remainder of 1.7 billion won of the instant real estate, under the name of the non-indicted 2, 300 won of the non-indicted 2, 600 won of the instant real estate owned by the victim of the non-indicted 2, 300 won of the maximum debt amount. The Defendant, despite of the above maximum debt amount, purchased approximately 15,00 square meters of the land owned by the victim, and approximately 90 million won of the remainder of 1.40 million won of the instant real estate at 20 billion won of the money loaned by the victim of the non-indicted 2, 300 million won of the instant real estate under the name of the non-indicted 2, 300 million won of the outstanding maximum debt amount. The Defendant, on July 31, 2006.

B. The judgment of the court below

Of the facts charged in the instant case, the lower court found the Defendant guilty of having obtained property benefits equivalent to KRW 550,579,60,000, the remainder of the secured value, which is the maximum debt amount of KRW 910,000,000, from the market price of KRW 1,460,579,000 at the time of September 30, 205, and sentenced the victim to one year and six months, on the grounds that there is insufficient evidence to acknowledge the excess amount.

2. Summary of grounds for appeal;

A. Error of mistake or misapprehension of legal principle

The market price of the instant real estate is not KRW 1,460,579,000, which is not the appraisal amount, but KRW 2,100,000,000, which is determined at the sale price of the Defendant and the victim. In addition to the instant real estate, as security for the Defendant’s loans to Nonindicted Bank 2, the land and the building on the land (number 2 omitted) owned by the Defendant was also offered as joint collateral. The Defendant acquired the instant real estate and the lower-class mortgage (hereinafter “EM real estate”) following Nonindicted Bank 2 bank. Accordingly, even if Nonindicted Bank 2, the first-class mortgagee, was paid the total amount of the secured debt from the auction price of the instant real estate, the victim, who is the second-class collateral security right, can receive reimbursement from the auction price of the instant real estate by subrogation of Nonindicted Bank 2 under Article 368(2) of the Civil Act, and thus, in assessing the ability to participate in the instant real estate in the auction of the instant real estate, it should include the following real estate.

In light of the above, if the aggregate market value of the instant real estate and the following real estate is calculated, the amount is 2,46,844,200 won (=2,100,000,000 + 346,844,200 won). However, the aggregate of the maximum debt amount of Nonindicted Party 2 Bank established on the instant real estate and the following real estate is 1,541,593,697 won (=910,000,000 + 631,593,697 won). Thus, the secured debt amount of the instant real estate and the following real estate is 905,250,503 won (=2,46,844,200 - 1,541,593,697 won) or it cannot be deemed that the victim was guilty of the Defendant’s act of breach of trust as long as it was sufficient for the Defendant to obtain reimbursement at the time of the Defendant’s act of breach of trust.

Although there are circumstances, the court below found the defendant guilty. In this regard, the court below erred by misapprehending the facts or by misapprehending the legal principles, which affected the conclusion of the judgment.

B. The portion of unfair sentencing

In light of various circumstances, such as the motive and background of the instant crime, in particular, the Defendant and Nonindicted 3’s failure to perform their obligations to the victim because they failed to recover the claims properly, and circumstances after the instant crime, especially the victim received dividends of considerable money in connection with the auction procedure of the real estate and won in the lawsuit of demurrer against distribution, and the damage was substantially recovered due to the following reasons: (a) in the auction procedure of the instant real estate, the sentence imposed by the lower court is too unreasonable.

3. The judgment of this Court

A. As to the mistake of facts and misapprehension of legal principles

(1) First of all, in calculating the value of the pertinent real estate on the premise that Article 3 of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes applies, if there is no burden on the said real estate, the amount equivalent to the market value of the pertinent real estate shall be deemed the value of the said real estate. However, if the establishment registration of a mortgage is established on the said real estate or seizure or provisional seizure is made on the said real estate, barring any special circumstance, the actual exchange value shall be deemed the value of the said real estate calculated by subtracting the secured claim amount within the scope of the maximum debt amount of the right to collateral security, the amount of the execution bond with the seizure, the amount of the secured claim with the seizure, the amount of the secured claim within the scope of the claim amount with the provisional seizure, etc. (see Supreme Court en banc Decision 2005Do7288, Apr. 19, 207).

In this case, according to the statement of Nonindicted Party 1 at the police court and at the court of original instance, and the appraisal statement of the defendant's defense counsel submitted as reference material at the court of original instance (the trial record No. 192 of the trial record), it is recognized that the objective exchange value of the real estate of this case was about KRW 1,460,579,60 at the time of the crime of this case. Based on this, the court below can be found to have calculated the amount of damage and the amount of profit caused by the defendant's crime, and the above assertion by the defense counsel based on the premise that

(2) Next, the argument that the victim's damage should be calculated on the basis of the total value of the real estate provided as joint collateral is examined. According to the evidence duly examined and adopted by the court below, the defendant and the victim transferred the ownership of the real estate of this case before the victim is fully paid the balance between the defendant and the victim on August 25, 2005, and the defendant agreed to set up a second priority collective security right to secure the payment of the unpaid intermediate payment and the remainder. Accordingly, the defendant had completed the registration of ownership transfer of the real estate of this case on September 29, 2005 despite the completion of the registration of ownership transfer on the real estate of this case on September 30, 2005, the first and second priority collective mortgage was established on the real estate of this case to secure the obligation for the loan from the bank of this case on September 30, 2005, and the victim who became aware of such fact at the latest may establish a joint mortgage on the real estate of this case on November 39, 2005.

According to these facts, even though the Defendant had set up a second priority mortgage on the instant real estate by the victim, the crime of breach of trust established by the Defendant in violation of the agreement was established on September 30, 2005, when the Defendant set up a second priority mortgage on the instant real estate by Nonindicted Bank 2, which was established on or around September 30, 2005. The amount of damage to the victim at that time was determined by deducting the amount equivalent to the first priority mortgage from the market value of the instant real estate, and the amount of damage to the victim at that time was determined by taking account of the fact that the victim can exercise the right of subrogation as a subordinated mortgage based on the fact that the victim acquired a second priority mortgage after the fact that the victim acquired a second priority mortgage, it is not determined that the amount of damage can not be calculated. Accordingly, the aforementioned assertion by

B. Regarding the issue of unfair sentencing

In this case, in light of the fact that the victim's damage was approximately KRW 550,00,00 at the time of committing the crime, the issue was significant; however, the defendant neglected to make efforts to recover damage to the victim; rather, the defendant was forced to resisting the victim by asserting that he was given prior consent from the victim without any objective grounds or materials; and the defendant continued to maintain such improper attitude up to the trial; accordingly, the victim and his husband were investigated by the investigative agency several times, and the victim and their husband were suffering from the suffering from attendance as witness in the court of the court of the court below, and there were many other circumstances to be considered disadvantageous to the defendant, such as those related to the sale and purchase of this case or the creation of collateral security right in this case, and those related to the creation of collateral security right in this case were investigated.

However, for the recovery of damage to the victim after the crime of this case, the defendant created a third-class collateral security right on the real estate of this case in order to recover damage to the victim, paid a total of KRW 800 million out of the unpaid intermediate payments and the balance of KRW 73,984,362, and the victim received a dividend of KRW 64,39,570 in the auction procedure on the real estate of this case, and received a dividend of KRW 64,39,570 by winning part of the lawsuit of demurrer to distribution filed in relation to the distribution procedure on the real estate of this case. In particular, when the trial of this case was in progress, damage of KRW 40,000 in the principal of the unpaid amount was actually recovered, and when considering other circumstances such as the defendant's age, character and environment, relationship with the victim, motive and consequence of the crime, circumstances after the crime, etc., the defendant's argument that the court below sentenced the defendant to the punishment of this case is too unjustifiable in light of the circumstances of this part of this case.

4. Conclusion

If so, the defendant's appeal on the ground of unfair sentencing is reasonable, under Article 364 (6) of the Criminal Procedure Act, the guilty part of the judgment of the court below is reversed, and it is decided as follows through pleading.

Article 3 (1) 2 of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes, Articles 355 (2) and 30 of the Criminal Act

1. Discretionary mitigation (normal consideration shown in favor of the reason for reversal);

Articles 53 and 55(1)3 of the Criminal Act

1. Suspension of execution;

Article 62(1) of the Criminal Act. Article 62(1) of the Criminal Act

1. Social service order;

Article 62-2 of the Criminal Act

Judges Yellow-Hahn (Presiding Judge)

1) The Defendant informed the victim of the establishment of the second priority right to the instant real estate in advance with respect to the grounds for appeal on the date of the first instance trial, and argued that the victim obtained consent from the victim. However, such assertion cannot be a legitimate ground for appeal as it was filed after the deadline for submitting the statement of grounds for appeal. In addition, according to the evidence duly examined and adopted by the court below, in particular, according to the evidence under the name of the Defendant (Evidence No. 6), the police officers of Nonindicted 4, and Nonindicted 5, and the statements at the court of original trial, the Defendant established the second priority right to the instant real estate without obtaining prior consent from the victim and without obtaining prior consent from the victim, and thus, it is recognized that the Defendant established the second priority right to the instant real estate in the future of Nonindicted 2 bank. Therefore, the above argument by

Note 2) The written judgment of the first instance court seems to have been written in 1,460,579,00 won for 1,460,579,600 won for 3rd written judgment.