[2] In a case where a person conspired with others to file a lawsuit against the person who conspireds to file a lawsuit against him/her or the judgment that intended to mislead the court is consistent with the intent of the other party to the lawsuit, whether the crime of fraud is established (

1. As to the violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Misappropriation) due to the transfer of ownership

A. The summary of this part of the facts charged is as follows: (a) the Defendant, who actually operated the victimized Company, in collusion with Nonindicted 1 and Nonindicted 3, the representative director of the victimized Company, in violation of his duties; (b) from April 16, 2007 to July 3, 2007, completed the registration of transfer of ownership in the name of Nonindicted 2 with respect to 550 million won in total of the market price of the victimized Company’s ownership from April 16, 2007 to July 3, 2007, with respect to the 55 households of the apartment house of this case, and thereby, (c) Nonindicted 3 obtained pecuniary benefits worth KRW 550 million and suffered damages equivalent to the same amount as the victimized Company.

The lower court determined that the Defendant’s act of completing the registration of ownership transfer with respect to the instant 5 apartment units in collusion with Nonindicted 1, the representative member of the victimized company, was abuse of authority for the purpose of promoting the profit of the Defendant or Nonindicted 2, regardless of the purpose of profit-making or management of the victimized company, and that the Defendant’s act of completing the registration of ownership transfer with respect to the instant 5 apartment units was null and void since Nonindicted 3, the representative of Nonindicted 2, the other party, knew or could have known the Defendant’s intention, thereby making it null and void for the victimized company, there is no room for the victimized company to be liable for damages due to the damage company’s liability for employer or corporate tort, and that the registration of ownership transfer in the name of Nonindicted 2 was cancelled due to the cancellation

B. However, we cannot accept the above decision of the court below for the following reasons.

The crime of breach of trust is established when a person who administers another’s business obtains, or has a third party obtain, pecuniary benefits by an act in violation of one’s duty, thereby causing loss to the principal. Here, “when property damage is inflicted” includes not only a case where a real loss is inflicted, but also a case where a risk of actual damage to property has been incurred. The determination on the existence of property damage should be based on the legal judgment not based on the legal judgment in relation to the property status of the principal, but also on the economic point of view. Thus, even if the act of breach of trust in question is null and void by legal judgment, where a real loss has been inflicted on the principal or a risk of actual damage to property has been inflicted due to the act of breach of trust in an economic point of view, it constitutes a crime of breach of trust (see, e.g., Supreme Court en banc Decision 2012Do1082, Dec. 27, 2012; Supreme Court Decisions 2012Do15890, Apr. 11, 2013>

In light of the above legal principles, even if the defendant's act of completing the registration of ownership transfer in the name of the non-indicted 2 with respect to the 55 apartment units of this case has grounds for invalidation as stated in the judgment of the court below, so long as the registration of ownership transfer in the name of the non-indicted 2 with respect to the 55 apartment units of this case owned by the non-indicted 2, it is reasonable to view that the actual damage was caused to the damaged company or the risk of actual damage to property was caused to the property (see, e.g., Supreme Court Decisions 91Do2963, May 26, 1992; 94Do1375, Nov. 21, 195). In addition, as long as the damage was caused to the company due to the completion of the registration of ownership transfer in the name of the non-indicted 2 company, so long as the damage was revoked due to the cancellation of the above ownership transfer registration in the name of the non-indicted 2 company, it may not affect the conclusion of the judgment.

2. As to the remaining violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Misappropriation) and occupational breach of trust

Examining the reasoning of the judgment below in light of the records, the court below was just to have judged that this part of the facts charged constituted a case where there is no proof of each crime, and it did not err by misapprehending the legal principles as to property damage of the crime of breach of trust and the duty to investigate ex officio as alleged in the grounds of appeal.

3. As to the violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Fraud) and fraud

In a lawsuit fraud, the judgment of the court, which is the defrauded, should have the content and effect in lieu of the victim's dispositive act. Thus, in a case where the defendants conspired with others to file a lawsuit against the dispositive partner, or where the contents of the judgment that the defendants intended to mislead and gain are consistent with the intent of the other party to the lawsuit, it cannot be said that there is an act of delivering property by mistake, and thus, the crime of fraud is not established (see Supreme Court Decision 96Do1265 delivered on August 23,

For the reasons indicated in its reasoning, the lower court upheld the first instance judgment that acquitted the Defendants on this part of the facts charged on the ground that there is no proof of each crime. Such determination by the lower court is justifiable as it is in accordance with the aforementioned legal doctrine, and contrary to what is alleged in the grounds of appeal, there were

4. Therefore, among the judgment below, the part on the violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Misappropriation) due to the transfer of ownership is reversed, and that part of the case is remanded to the court below for further proceedings consistent with this Opinion. The remaining appeal is dismissed. It is so decided as per

Justices Kim Shin (Presiding Justice)