배임
The prosecutor's appeal is dismissed.
1. Between the obligee and the obligor who entered into an accord and satisfaction promise on real estate for the purpose of securing the gist of the grounds for appeal, separate from the legal relationship causing the secured claim, a separate fiduciary relationship exists from the collateral agreement itself. Thus, if the obligor disposes of the real estate to a third party in violation of a fiduciary relationship, thereby making it impossible or remarkably difficult for the obligee to acquire the ownership of the real estate, it constitutes a breach of fiduciary relationship arising from the accord and satisfaction
Therefore, the court below acquitted the defendant on the ground that the act of completing registration of preservation of ownership in the name of a third party on the real estate provided by the defendant as a promise for payment in kind, as in the facts charged of this case, and completing the registration of transfer right claim to a third party constitutes
2. Determination
A. On October 23, 2013, the Defendant: (a) borrowed KRW 50 million from “Mamabast Loan Finance” from the victim’s “Mabast Loan in the Seoul Jongno-gu Clegal Office; (b) concluded and notarized a security agreement on the said money lending in the form of promising the purchase and lending to the victim, which is a newly built building, “In Incheon, Seo-gu Down-gu, and Nabdong”; and (c) promised the purchase and lending
In the event that the Defendant is unable to repay the borrowed amount, despite the duty to implement the procedures for the above lending sale and purchase contract so that the Defendant may achieve the purpose of the security pursuant to the said notarial act, the Defendant completed the registration of preservation of ownership under the name of his/her female-friendly job offering E on December 6, 2013, and completed the registration of the right to claim ownership transfer under the F’s name on February 5, 2014.
Accordingly, the defendant acquired the above loans of KRW 50 million and suffered the same amount as the victim.
B. The lower court’s judgment 1 related legal principles.