(b) Fraud;

1. As to the part on breach of trust

A. Summary of this part of the facts charged and the judgment of the court below

1) The summary of this part of the facts charged is that the defendant, as the representative director of the non-indicted 1 corporation, sold one truck of 4.5 tons that the above company would have obtained from the victim and agreed to use it for the transport business of the cargo (hereinafter referred to as the "agreement of this case"), and the victim received all expenses, such as the new vehicle, insurance premium, and registration tax, from the victim and delivered the new vehicle without the security to the victim, the defendant violated the above 4.5 tons of freight (vehicle number omitted), and thereby, the defendant acquired property profits and sustained property damage to the victim by establishing a mortgage of KRW 70 million (hereinafter referred to as "mortgage of this case") at the bond value of the non-indicted 2 corporation as the mortgagee of the non-indicted 1 corporation (hereinafter referred to as "the mortgage of this case").

2) The lower court determined that the Defendant’s duty to cooperate in the preservation of property against the buyer of the automobile seller, deeming that the obligation to cooperate in the preservation of property constitutes another person’s business, and that the Defendant’s establishment of the instant mortgage on the instant cargo constitutes a breach of trust on the ground that it violates the duty to implement the procedures for ownership transfer registration or new registration with respect to the victim.

B. Judgment of the Supreme Court

1) The crime of breach of trust is established when a person who administers another’s business obtains pecuniary benefits or causes a third party to acquire such benefits through an act in violation of one’s duty, thereby causing damage to another person who is the subject of the business, so the subject of the crime must be in the position of administering another’s business. Here, “a person who administers another’s business” should be in the position of administering another’s business. In order to be “a person who administers another’s business,” the subject of the crime should be in the position of administering another’s business, such as where all or part of the business pertaining to the management of another’s property is performed on behalf of another person, the typical and essential contents of the relationship between the parties should be in protecting or managing another’s property based on a fiduciary relationship, which goes beyond the conflict of interest in an ordinary contract, (see, e.g., Supreme Court en banc Decision 201

A) In principle, a contract becomes effective when one of the parties agrees to transfer a property right to the other party and the other party agrees to pay the price thereof (Article 563 of the Civil Act), and the obligation that both parties are obliged to perform in good terms of the terms of the contract constitutes “one’s own business” barring special circumstances. As a seller in a contract of movable property sales is not in a position to handle his/her business against the buyer, even if the seller disposes of the property in another place, the crime of breach of trust is not established under the Criminal Act (see, e.g., Supreme Court en banc Decision 2008Do10479, Jan. 20, 201).

Since the foregoing legal doctrine equally applies to a sales contract for movable property that requires registration and recording in the transfer of rights, a seller of a motor vehicle, etc. is not in a position to handle his/her business against a buyer, and thus, even if a seller disposes of it to another person without registering the transfer of ownership, the crime of breach of trust is not established (see, e.g., Supreme Court en banc Decision 2020Do6258, Oct. 22, 2020

B) The so-called access system refers to a transportation business in which each borrower runs a business on his/her own management and account and pays rent to a transportation business entity, under a contract entered into between a transportation business entity holding a license for a motor vehicle transportation business and a borrower who actually owns a motor vehicle, externally registered the motor vehicle in the name of a transportation business entity and vests it in the name of the transportation business entity (see, e.g., Supreme Court Decisions 2003Do3073, Sept. 2, 2003; 2009Do5302, Sept. 24, 2009).

Therefore, in a case where a local owner company entrusts the ownership registration of a motor vehicle to a local owner company by concluding a land entry contract with the local owner company for a motor vehicle in which he/she actually owns or has the authority to dispose of the motor vehicle, and delegates the registration and maintenance of a motor vehicle for a transport business to another agency, barring any special circumstance, the local owner company is in the position of "a person who administers another's business" in relation to the local owner company, as the typical and fundamental substance of the relationship between the parties is to manage and manage the property of the land owner company with certain authority, which is the real property of the local owner company.

2) Examining the reasoning of the lower judgment in light of the aforementioned legal doctrine, the lower court erred by recognizing the Defendant, who is in the position of the seller of the instant truck in accordance with the sales contract among the instant agreement, as the duty to cooperate in property preservation, such as the real estate seller

3) However, according to the reasoning of the lower judgment and the evidence duly admitted, the following facts are revealed.

A) On March 10, 2013, the Defendant and the victim released the 4.5 tons of Hyundai Motor vehicle, and changed its structure and transfer it to the victim. However, the Defendant newly registered the said cargo in the name of the branch office operated by the Defendant so that it can be used for the victim’s cargo transport business. The victim paid the Defendant the amount of KRW 57 million, KRW 14 million, KRW 3 million, KRW 3 million, KRW 16,000, KRW 16,000, KRW 300,000, KRW 16,000,000, and KRW 93,000,000, KRW 16,000, monthly, and KRW 200,000,000 for each vehicle.

B) On April 2013, the Defendant and the victim drafted a motor vehicle transfer certificate to the effect that Nonindicted Co. 1, which the Defendant’s Defendant operated, transferred one of the new vehicles 4.5 tons of Hyundai Motor Vehicle Loading in 2013 to the victim at KRW 85 million. The said motor vehicle transfer certificate states that Nonindicted Co. 1 delivers documents necessary for the registration of transfer of ownership to the victim due to the receipt and redemption of the balance.

C) From April 6, 2013 to April 13, 2013, the victim paid KRW 85 million to Nonindicted Incorporated Company 1, and on April 22, 2013, the victim paid KRW 93 million under the instant agreement by directly paying 8 million to the manufacturer of the train on April 22, 2013. On May 8, 2013, the Defendant was released three new cargo trucks with KRW 4.5 tons, and the victim identified the instant truck that he/she would purchase.

D) Around May 23, 2013, the Defendant borrowed KRW 70 million from Nonindicted Co. 2 to Nonindicted Co. 3 in the name of Nonindicted Co. 3. Around July 16, 2013, the Defendant newly registered the instant cargo vehicle in the name of Nonindicted Co. 4, a logistics company, under the victim’s understanding. On the same day, the Defendant, without the consent of the victim, set up the instant mortgage on the instant cargo vehicle with the mortgagee Nonindicted Co. 4, the mortgagee Nonindicted Co. 2, and the debtor Nonindicted Co. 3 as the secured claim.

E) Around that time, the Defendant delivered the instant cargo vehicle to the victim, and the victim used the instant cargo vehicle for its own cargo transport business.

4) We examine the above facts in accordance with the legal principles as seen earlier.

In full view of the developments leading up to the conclusion of the instant agreement and the details thereof, the instant agreement is a combination of a sales contract with the content that the victim purchases the instant truck from the Defendant’s side and the content that the victim purchases the instant truck to the Defendant’s branch entry into the Defendant. Accordingly, since the victim fully paid the purchase price of the instant truck and registered the instant truck under the name of the Defendant’s branch entry company, barring any special circumstance, the victim was in a position to seek implementation of the transfer registration procedure in the name of himself/herself or the branch entry company, etc. designated by himself/herself at the time of the termination of the branch entry into the instant truck, barring any special circumstance, while entirely operating and managing the instant truck, and the victim was in a position to seek implementation of the transfer registration procedure in the name of the principal or the branch entry company, etc. designated by himself/herself. Therefore, the victim may be deemed to have delegated the registration of the instant truck under the name of the Defendant and the victims for the transport business. Since it is recognized that the typical and intrinsic payment of the instant truck is an agent’s property management relationship with the victim.

Therefore, it constitutes a crime of breach of trust to inflict property damage on the victim by granting the instant mortgage to Nonindicted Co. 2 without the consent of the victim, in violation of the duty of the defendant to arbitrarily not to set up the security for the instant cargo vehicle in the course of handling the business of the victim under the instant agreement.

5) Therefore, the lower court’s conclusion that found the Defendant guilty of this part of the facts charged is justifiable, and the lower court’s error does not affect the conclusion of the judgment.

2. As to the fraud part and the judgment on the number of crimes

The grounds of appeal as to fraud are merely the purport of disputing the judgment of the lower court on the choice of evidence and probative value, which belongs to the free judgment of the fact-finding court, and does not constitute legitimate grounds of appeal. Furthermore, even if examining the reasoning of the lower judgment in light of the evidence duly admitted, the lower court did not err in its judgment by exceeding the bounds of the

In addition, it is just that the court below recognized the relationship between the crime of breach of trust and the crime of fraud as a substantive concurrent crime, and there is no error of misapprehending the legal principles on the number of crimes.

3. Conclusion

Therefore, the appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Jae-hyung

Justices Ansan-chul et al.

Justices Noh Jeong-hee