Attorney Lee Jae-chul et al.

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

A. The summary of the facts charged in the instant case is that Defendant 2 delegated the right to dispose of the instant parcel of land to the Nonindicted Party, the ownership of Defendant 1, with Defendant 1’s consent, and the Nonindicted Party sold the instant parcel of land on behalf of Defendant 1, and the Defendants were obligated to implement the procedure for the registration of ownership transfer based on the instant parcel of land, but the Defendants entered into an agreement with the Defendant to provide the apartment to be acquired based on the instant parcel of land in advance and received the loan to the effect that the said apartment would be acquired based on the instant parcel of land, and attempted to obtain property benefits equivalent to the above loan and inflict property damage equivalent to the same amount on the victim, but attempted to do so.

B. The court below reversed the judgment of the court of first instance which acquitted the seller of the above facts charged on the ground that the seller of the right to purchase the ownership of an object based on the right to purchase the ownership, and convicted the buyer of the above facts charged.

2. Judgment of the Supreme Court

(a) double disposition of ownership and breach of trust;

1) The crime of breach of trust is established when a person who administers another’s business obtains pecuniary advantage or has a third party acquire it by doing so in violation of his/her duty, thereby causing damage to another person who is the subject of the business. As such, the subject of the crime must be in the position of administering another’s business. Here, “a person who administers another’s business” in order to be “a person who administers another’s business” should be in the position of administering another’s business: (a) the typical and essential contents of the relationship between the parties, such as the case where the whole or a part of the business concerning the management of another’s property is performed for another person; (b) should be in the protection or management of another’s property based on a fiduciary relationship between them, beyond the conflict of interest in the ordinary contract (see, e.g., Supreme Court en banc Decision 2008Do10479, Jan.

Under an ordinary contractual relationship in a separation relationship, the mere fact that the other party gains the benefit of satisfaction of a right under a contract or of realizing a claim through the performance of a debtor’s faithful performance of a duty, or that there is an incidental duty to protect or take account of the other party in the performance of a contract cannot be deemed a person who administers another’s business (see, e.g., Supreme Court en banc Decision 2015Do1301, Mar. 26, 2015). In cases where the content of a typical and intrinsic benefit of a contract, such as a delegation, falls under a case where the performance of the other party’s property is performed with a certain authority (see Supreme Court en banc Decision 2019Do9756, Feb. 20, 202).

2) In principle, where one of the parties agrees to transfer a property right to the other party as a sale and purchase and the other party agrees to pay the price thereof (Article 563 of the Civil Act). In principle, the obligations owed by both parties to perform good performance under their terms of the contract constitute “one’s own business,” barring special circumstances.

In addition, as a seller of a purchase and sale contract for a right of purchase and sale, in principle, the seller fulfilled the procedure for change of the name of the buyer with the consent or approval of the buyer for the change of the buyer's name, and the seller is not obligated to acquire the ownership of the subject-matter based on the right of sale and complete the registration of ownership transfer in the future (see, e.g., Supreme Court Decision 2006Da44401, Nov. 23, 2006). However, there are cases where the buyer of a right of sale exercises the right of purchase and the buyer is also obligated to exercise the ownership of the subject-matter and perform the procedure for transfer of ownership of the subject-matter (see, e.g., Supreme Court Decision 2006Da44401, supra). However, since the right of sale and sale is exercised in the name of the seller without the procedure for change of the buyer's name and the right of sale is extinguished, and if only the subject-matter remains, it is difficult to view the change of the buyer's trust relationship or intrinsic property.

Considering the content and degree of the sales contract for the right to purchase and sell, the degree of binding force of the contract accordingly, transaction practices, type and content of a fiduciary relationship, and degree of violation of trust, the typical and essential content of the relationship between the parties pursuant to the sales contract for the right to purchase and sell cannot be said to be in protecting or managing another person’s property based on a fiduciary relationship between them going beyond the relationship of conflict of interest in the ordinary contract.

Therefore, barring any special circumstance, the seller of the right to buy lots is the duty to transfer the right to buy lots to the buyer under the sales contract of the right to buy lots only constitutes one’s own business, and thus, it cannot be said that the seller of the right to buy lots is a person who administers another’s business in relation to the buyer. Therefore, even if the seller of the right to buy lots disposes of the right to buy lots or the object to acquire ownership in advance to a third party without performing the above duty

B. We examine the judgment of the court below in light of the aforementioned legal principles.

Unless there are other special circumstances, Defendant 1’s obligation to transfer the ownership of this case to the victim pursuant to the contract of sale and purchase of the ownership of this case with the victim is one’s civil obligation and it cannot be deemed as another’s business. Thus, the Defendants cannot be deemed to be in the position of “a person who administers another’s business.” Nevertheless, the lower court convicted the Defendants of the facts charged in this case on the premise that the Defendants constituted it. In so doing, the lower court erred by misapprehending the legal doctrine on the meaning of “a person who administers another’s business in breach of trust

3. Conclusion

Therefore, without examining the Defendants’ grounds of appeal, 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 Cho Jae-chul

Justices Lee Dong-won

Justices Park Gyeong-tae, Counsel for the defendant