[배임][집21(2)형,063]
Status of the donor and the person handling any affairs of another person where the registration of transfer of ownership on the ground of donation has not been made pursuant to Article 10 of Addenda of the Civil Act.
According to Article 10 of the Addenda of the Civil Act, the effect of transfer of ownership of forest land to a donee is that the donee was lost by failing to complete the registration of transfer of ownership due to donation until six years have passed from January 1, 1960, the enforcement date of the Civil Act. Therefore, the donor is in the position of a person who administers another's business, and the composition of the crime of breach of trust cannot be denied on the premise that the donee has ownership
A. Article 355 of the Criminal Act
ASupplementary to the Civil Act
Prosecutor
Seoul Criminal District Court Decision 72No3441 delivered on January 11, 1973, the Seoul Criminal District Court Decision 72No341 delivered on January 11, 1973
The original judgment is reversed, and the case is remanded to the Panel Division of the Seoul Criminal Court.
The prosecutor's grounds of appeal are examined.
As to the facts charged in breach of trust against the Defendant, the lower court determined to the effect that even if the Defendant donated the instant forest to B, if the date and time of the donation were to June 12, 1945 prior to the enforcement of the new Civil Act, even if the said B did not complete the registration of transfer of ownership, it would have already acquired the ownership of the said forest, and thus, the Defendant cannot be deemed to be in the position of a person who is responsible for the registration of the said B’s business, on the ground that the Defendant had a duty to register the said forest with the said B. Thus, the lower court did not constitute a so-called breach of trust.
However, according to Article 10 of the Addenda of the Civil Code, the effect of transferring the ownership of the forest of this case to the above B by the defendant's donation shall be deemed to have been lost due to the above B's failure to complete the registration of transfer of ownership due to the donation until six years have passed from January 1, 1960, which is the enforcement date of the Civil Code. Therefore, the judgment of the court below which rejected the constitution of the crime of breach of trust
Therefore, with the assent of all participating judges, the original judgment is reversed, and the case is remanded to the Panel Division of the Seoul Criminal Court. It is so decided as per Disposition.
Justices Ahn Byung-soo (Presiding Justice) (Presiding Justice)