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광주지방법원 2016.08.19 2016고합77

특정경제범죄가중처벌등에관한법률위반(배임)

Text

The defendant is not guilty. The summary of the judgment against the defendant shall be published.

Reasons

1. The Defendant was married on July 12, 1976 with the victim C, but on December 1, 2014, the case of divorce, etc. (the victim and the Defendant) at the Mediation Office No. 308 by Gwangju District Court, on December 1, 2014, the conciliation was concluded and confirmed that “The Defendant sold land of 2,400 square meters in response to the Plaintiff’s located in Gwangju Mine-gu D (hereinafter “instant land”) to a third party and paid the price to the victim by December 31, 2015, and if the payment is not fulfilled, the payment shall be paid to the victim by January 1, 2016.”

Therefore, the Defendant sold the instant land to G, etc. on November 23, 2015, and sold the instant land in the F office located in Seo-gu, Gwangju, in KRW 1,540,000,000, to G, etc. on November 15, 2015, even if having completed the registration of ownership transfer, the Defendant sold the instant land to the victim following the above conciliation, or had the victim completed the registration of ownership transfer, thereby causing damage equivalent to the same amount to the victim by failing to pay the said money to the victim.

2. Determination

A. Since the crime of breach of trust is established by a person who administers another’s business by acquiring pecuniary advantage through an act in violation of his/her duty, the subject of the crime must be in the position of administering another’s business.

Here, “a person who administers another’s business” is required to protect or manage another’s property on the basis of a fiduciary relationship between the parties, beyond a mere obligation under a fiduciary relationship. If the business is not a person’s business, but a person’s own business, he/she is also liable to handle the business in favor of another person and to handle the business in favor of another person.