[배임ㆍ무고ㆍ위증ㆍ변호사법위반][집30(1)형,11;공1982.4.15.(678), 350]
In the case of double transfer by a company, whether the representative director's breach of trust is violated (negative)
A, a representative director of A, transferred the company’s real estate under the name of B, and thereafter, even if the Defendant, who was the representative director of the above company, transferred the company’s name to a third party and completed the registration of transfer of ownership, the above company bears the obligation to register the transfer of ownership to B. The Defendant is not related to the status of administering the business against B, i.e., the Defendant and Eul, and the other party, so the crime of breach of trust is not established.
Article 355(2) of the Criminal Act
Supreme Court Decision 79Do2509 Delivered on December 11, 1979
Supreme Court Decision 78Do1714 delivered on October 10, 1978
Supreme Court Decision 75Do1900 Delivered on February 10, 1976
Supreme Court Decision 72Do1676 delivered on September 26, 1972
Defendant 1 and one other
Attorney Park Jong-chul (Pho) (Defendants 1 and 2)
Seoul Criminal Court Decision 76No4193, 77No6209 decided June 24, 1980
The part concerning Defendant 1 among the judgment below is reversed, and that part of the case is remanded to the Panel Division of the Seoul Criminal Court.
Defendant 2’s appeal is dismissed.
The grounds of appeal are examined.
1. As to Defendant 1:
A. As one of the criminal facts against the defendant, the court below recognized that the defendant was in office as the representative director of the non-indicted corporation between October 8, 1974 and May 31, 1975. The defendant, at the above office of the non-indicted 2, who was the former representative director, had been in office in the name of the above office of the above company, for the victim Lee Jong-ho to pay for about 7,230,00 won of the Gabong-dong market apartment constructed by the above company's contract for the above company's 7,230,00 won in lieu of paying for the above company's 205, 18 square meters of the apartment house, and concluded a contract for the ownership transfer registration procedure for the above 205, which had been known that the above company's 25,000 won had been in office immediately completed the apartment house, and thereafter, the defendant was in violation of the above 205's duty of ownership transfer registration of the above company's representative director.
B. The crime of breach of trust stipulated in Article 355(2) of the Criminal Act is a person who administers another's business (see Supreme Court Decision 78Do1714, Oct. 10, 1978). According to the above decision, it is clear that the non-indicted corporation bears the obligation to register the transfer of ownership under Article 35(2) of the Criminal Act, and the defendant merely is the representative of the company, and the defendant is merely a mere representative of the company, and there is no relationship with the other person. Thus, the court below's judgment does not constitute the crime of breach of trust since it is not possible to escape criticism that a person committed an unlawful act by misunderstanding the legal principles on the crime of breach of trust. Thus, the judgment of the court below, which is applied to the crime of breach of trust as a concurrent crime with other crime, shall be reversed without examining the judgment on other points of issue.
2. As to Defendant 2:
If we review the evidence of the judgment below in comparison with the records, we accept the facts constituting the crime at the same time, and it cannot be said that there were errors in documentary evidence such as the novel in the process of evidence preparation.
For the above reasons, the judgment of the court below as to Defendant 1 is reversed and remanded, and the appeal by Defendant 2 is dismissed, and it is so decided as per Disposition with the assent of all participating judges.
Justices Jeon Soo-hee (Presiding Justice)