[2] Whether it is unlawful to calculate the amount of damages in the crime of breach of trust (affirmative), and where a seller concludes a real estate transfer contract after the sale of real estate and borrows money to a third party, the amount of damages suffered by the purchaser (=the amount equivalent to the secured debt secured by

[3] The meaning of "where loss is inflicted on the principal" in the crime of breach of trust, and the elements for establishing the crime of breach of trust in the case where delegated business is the duty

1. As to each fraud

In the course of selling and selling real estate, the seller has a duty to notify the buyer in advance of such circumstances in light of the principle of trust and good faith, if the buyer did not notify the buyer of any specific circumstance in relation to the sale and purchase of the real estate, thereby bringing about a danger that the buyer would not unilaterally rescind the first sale and purchase contract, and without notifying the buyer of such circumstance that the buyer would not enter into the sale and purchase contract or would not pay the purchase and sale price, and if it is evident in light of the rule of experience that the buyer would not enter into the sale and purchase contract if he was notified of such circumstance, the seller shall be obligated to notify the buyer of such circumstance. Thus, the seller's failure to notify the buyer of such circumstance constitutes a crime of fraud. However, it cannot be deemed that the seller has a duty to notify the buyer of the fact that there is no influence on legal relations with the sale and purchase, and therefore, in double selling of real estate, the seller cannot be deemed as impeding the effectiveness of the second sale and purchase contract or the performance of obligations arising from the sale and purchase contract, and it cannot be deemed as impeding the buyer's from double sale and sale and sale of real property.

However, according to the facts acknowledged by the court below, the circumstance that at the time of the sales contract or the transfer security contract for the second of this case, the defendant was liable to transfer the ownership of the part of the ○○○○○ Commercial Building (hereinafter “the building of this case”) located in Osan-si, the first purchaser or the mortgagee at Osan-si, cannot be deemed as having impeded the effectiveness of the sales contract or the transfer security contract for the second of this case or the performance of obligations under the contract, and it cannot be deemed as a hindrance to the realization of the right to the object of the lease by the second buyer or the mortgagee. Thus, the defendant's failure to notify the second buyer or the mortgagee of such circumstance cannot be deemed as deceiving the second buyer or the mortgagee.

Nevertheless, the court below concluded that the defendant enticed the second buyer or mortgagee on the ground that the defendant did not notify the second buyer or mortgagee of the conclusion of the sales contract or the transfer for security contract of this case as to the second buyer or mortgagee. This decision of the court below is erroneous in the misunderstanding of legal principles as to deception in fraud, which affected the conclusion of the judgment.

2. As to attempted breach of trust by October 15, 2007

Although the amount of damages in the crime of breach of trust is not clearly calculated, it does not affect the establishment of the crime of breach of trust, but if the amount of damages is calculated and recognized specifically, it is unlawful to calculate it (see Supreme Court Decision 98Do4022, Apr. 13, 1999). It is reasonable to view that the amount of damages suffered by the buyer is equivalent to the secured debt secured by the security interest in transfer where the seller concludes a security agreement on the real estate after the sale of the real estate and borrows money to a third party.

According to the reasoning of the judgment below, since this part of the crime was received by the defendant from the victim non-indicted 1, who sold 103 among the instant building, and then concluded a security agreement on 103 of the instant building and borrowed 34,50,000 won to non-indicted 2, it is reasonable to view the victim non-indicted 1's losses to be incurred due to the defendant's breach of trust as 34,50,000 won, which is the amount equivalent to the secured obligation under the security contract. However, the judgment of the court below that deemed 342,452,00 won in total the down payment and the intermediate payment to be the victim non-indicted 1's losses due to the defendant's breach of trust, is erroneous in the misapprehension of legal principles on the calculation of damages for breach of trust, which affected the conclusion

3. As to the attempted breach of trust on June 3, 2008

A crime of breach of trust is established in cases where a person who administers another's business obtains pecuniary benefits or has a third party obtain such benefits by an act in violation of one's duty and thereby causes loss to the principal. Here, the time causing loss to the principal includes not only cases where the actual harm is done but also cases where the risk of actual harm is caused. In cases where the delegated business is the duty of transfer registration of real estate ownership, if the purchaser's right to claim transfer registration of ownership held by the delegated business is impossible or there is a risk of omission in performance, the crime of breach of trust is established (see Supreme Court Decision 2011Do1651, Jun. 30, 201).

According to the reasoning of the judgment below, the court below acknowledged the facts as stated in its reasoning after compiling the evidence duly admitted, and determined that the defendant concluded a security transfer contract for 102 billion won among the instant building with the victim non-indicted 3 for the loan of 102 million won and borrowed to the non-indicted 4 the amount of KRW 34 million among the instant building, thereby running a breach of trust. The court below held that the defendant could have caused the risk of omitting the right to claim ownership transfer registration of 102 from among the instant building owned by the victim non-indicted 3.

In light of the above legal principles and records, the above determination by the court below is just and acceptable, and contrary to the allegations in the grounds of appeal, it cannot be deemed that there were no errors by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules, or by misapprehending the legal principles on attempted breach of

4. Scope of reversal

Of the judgment of the court below against the defendant, each fraud and attempted breach of trust as of October 15, 2007 should be reversed without examining the remaining grounds of appeal as to this part. The defendant's appeal as to attempted breach of trust as of June 3, 2008 is without merit. However, the court below found the defendant guilty of all of the above charges, and found the defendant guilty of all of the above charges. In determining the punishment, the crime of fraud as of October 15, 2007 between the date of the crime of attempted breach of trust as of June 3, 2008, and the crime of attempted breach of trust as of June 3, 2008, the crime of fraud as of the same day of the crime of attempted breach of trust as the crime of attempted breach of trust as of June 3, 2008, and punishment for each of these crimes is imposed more severe crimes, and thus, the judgment of the court below is reversed in its entirety.

5. 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 Park Poe-young (Presiding Justice)