[배임][공1992.12.1.(933),3185]
The case holding that since it is not unreasonable to determine that the defendant, a real estate seller, has no intention to perform a contract, the defendant does not have any intention to commit a crime of breach of trust against the defendant who has made a provisional registration on real estate for sale in the name of a third party without relation to whether the contract has been lawfully rescinded.
The case holding that the defendant, who is a real estate seller, has no intention to commit a crime of breach of trust against the defendant, who has made a provisional registration of real estate for sale in the third party, regardless of whether the contract has been lawfully rescinded, on the grounds that it is not unreasonable to determine that the defendant has no intention to perform a new requirement under the original contract.
Articles 13 and 355(2) of the Criminal Act
A
Defendant
Attorney B
Jeju District Court Decision 91No144 delivered on April 3, 1992
The judgment of the court below is reversed, and the case is remanded to Jeju District Court Panel Division.
Defendant’s defense counsel’s grounds of appeal
1. The judgment of the court of first instance maintained by the court below on April 15, 198, when the defendant agreed to sell 1/2 shares of the underground space of the E-ground market building at the hotel located in Jeju Interlock C on April 15, 198 between the victim D and the defendant, and 1/2 shares of the above land and the above market building on the second and third floors as representative director, and 4,500 shares of the above company to sell 360,00,000 won to the above market for the above 200,000,000 won out of the price, and at the same time, the transfer registration for each of the above co-owned shares was completed, and the remainder of 160,000,000 won should be paid from the above market for the above 200,000,000 won should be paid from the above market for the above 20,000,000 won should be paid from the above 20,000,00,000.
2. However, according to the testimony of the witness H employed by the first and the second instance court and the statement of the investigation records, the victim D, through the above H, presented a document stating the conditions of the demand that the defendant would not be able to pay the remaining amount unless the defendant settled the existing debt of the FF corporation first, and that the defendant would not be engaged in a partnership business, and the defendant would not be able to pay the remaining amount unless the defendant settled the previous debt of the FF corporation first, and he would not be able to do so. The written statement stating the conditions of the demand in 1 to 5 and 6 as stated in 1 to 5, stating that the defendant would not accept the said requirements, and the defendant could not accept the said requirements, and on the other hand, according to the first instance court of the above D, employed by the first and second instance court, the victim D, at the first instance court of May 25, 1988, determined that the defendant would not be able to return the above conditions of the request to the above 4000 won and 1800 won.
Therefore, it is difficult to view that there was a criminal intent of breach of trust in making a provisional registration of this case, apart from whether the contract between the defendant and the above D has been lawfully rescinded. Therefore, even though the court below should have examined this point more closely, the court below erred by misapprehending the value of evidence and failing to exhaust all deliberations, which affected the conclusion of the judgment, and thus, it is reasonable to point this out.
3. Therefore, without examining the remaining grounds of appeal, we reverse and remand the judgment below. It is so decided as per Disposition by the assent of all participating Justices on the bench.
Justices Kim Jong-soo (Presiding Justice)