[2] In a case where the defendant purchased a motor vehicle under his own mother's name, borrowed necessary funds from the victim Gap corporation and set up a mortgage on the motor vehicle, and provided them to a third party without the mortgagee Gap corporation's consent as a security for transfer, and was prosecuted for breach of trust, the case holding that the judgment below which found the defendant not guilty on the ground that there is an error of law such as misapprehension of legal principles, in light of all the circumstances, since the defendant's act substantially loses the security value of Gap corporation's company, and there

[2] In a case where the defendant purchased a vehicle under his own mother's name by borrowing necessary funds from the victim Gap corporation and set up a mortgage on the vehicle without the consent of the mortgagee Gap corporation, and provided it to a third party as a security for transfer without the consent of the mortgagee Gap corporation, and was prosecuted for breach of trust, the case held that the judgment below erred in the misapprehension of legal principles on the following grounds: (a) the defendant borrowed money from a third party who could not accurately identify and delivered the vehicle as security; (b) the defendant did not repay the borrowed money; and (c) the loan to Gap corporation was suspended; (d) the defendant did not receive an order for delivery of the vehicle for the execution of the mortgage on the automobile; (b) the vehicle was impossible to execute the registration because it was not known; and (c) there was no measures necessary for the registration transfer under the Automobile Management Act and other related Acts and subordinate statutes such as the issuance of a certificate of personal seal impression by the transferor which should be accompanied by the normal transaction; and (d) the defendant's act did not actually lose the value of the mortgaged Gap corporation Gap's automobile; and there was no other special circumstances found guilty.

Where a mortgage is established on an automobile, the exchange value of the automobile is included in the mortgage, and even if the mortgager sells an automobile and its owner is different, it does not constitute a crime of breach of trust merely because the mortgager sells an automobile which is the object of the mortgage to another person, barring any special circumstances (see Supreme Court Decision 2008Do3651, Aug. 21, 2008). However, it cannot be exempted from the liability for the crime of breach of trust in the event the debtor provided as a security and possessed an automobile unfairly reduces the security value (see Supreme Court Decision 89Do350, Jul. 25, 1989).

According to the reasoning of the judgment below, the court below affirmed the judgment of the court of first instance which acquitted the defendant on the primary charges of breach of trust on the ground that even if the defendant provided the mortgaged automobile to a third party at will without the consent of the mortgagee, the mortgage does not affect the mortgage, and thus, the breach of trust is not constituted.

However, according to the evidence of the first instance court maintained by the court below, the defendant borrowed KRW 20,00 from the person who is the largest president with which his identity is not accurately known, and delivered the automobile of this case as collateral, and prepared up a letter of waiver of the vehicle, and thereafter, the defendant did not repay the above borrowed money, and the defendant did not repay the loan to the victim, and the victim was ordered to deliver the automobile to execute the mortgage on the automobile of this case, and the victim did not know its location, and eventually became impossible to execute it. In full view of the circumstances such as the fact that it seems that the measures necessary for the registration transfer under the Automobile Management Act and other related Acts and subordinate statutes, such as the issuance of a certificate of personal seal impression by the transferor, which should be accompanied by the ordinary transaction, could not be taken at all, the defendant's act would substantially lose the security value of the automobile of this case, and there is a special reason to establish the crime of breach of trust. Accordingly, the court below erred in the misapprehension of legal principles as to the act of breach of trust as to the primary facts charged.

However, according to the records, the Defendant: (a) lent the name of the non-indicted in the name of the mother to purchase the instant motor vehicle; (b) completed the registration of transfer of ownership in the name of the non-indicted; and (c) the Defendant was present at the time of the said motor vehicle sales contract and the loan contract with the victim, but all the parties to the said contract are not the defendant but the non-indicted. As such, the lower court after remanding the case, has sufficiently deliberated on whether the Defendant can be deemed the actual party to the vehicle sales contract or loan contract; and even if not, in relation to the victim, whether the Defendant has a duty to keep the instant motor vehicle so that the mortgagee can achieve the purpose of the security in light of the principle of good faith, and

Therefore, the judgment of the court below is reversed, and the case is remanded to the court below. It is so decided as per Disposition by the assent of all participating Justices.

Justices Min Il-young (Presiding Justice)