[2] Whether a seller is in a position to handle his/her business against a buyer in a movable property sale contract (negative); in such a case, if a seller disposes of an object to another buyer, whether a crime of breach of trust is established under the Criminal Act (negative)

The same shall also apply where a debtor has agreed to or created a mortgage on a movable owned by him/her in accordance with the "Act on Mortgage on Motor Vehicles and other Specific Movables," etc. to secure a pecuniary obligation. A debtor’s obligation to provide a movable as a collateral pursuant to a mortgage contract, namely, a obligation to maintain, preserve, or not to damage, reduce, or destroy a collateral, or a passive obligation not to deliver a security to a creditor or his/her designated person at the time of the execution of a security right, etc. A debtor’s obligation to cooperate in the exercise of a security right, such as the obligation to deliver a security in reality, is a debtor’s own payment obligation. Furthermore, a mortgage contract is a subordinate contract for the occurrence of a secured obligation, and the obligation to be borne by a debtor under a mortgage contract is also extinguished if the secured obligation is extinguished. The obligation to be borne by a debtor under a mortgage contract is aimed at the realization of a claim through the exercise of a security right, i.e., the execution of a mortgage contract or the establishment of a mortgage.

Therefore, the obligor’s performance of the above obligation is merely an obligor’s own business, and the obligor cannot be deemed to have entrusted the obligee’s business based on a fiduciary relationship with the obligee beyond an ordinary contractual relationship. Therefore, the obligor cannot be deemed to fall under “a person who administers another’s business” as the subject of breach of trust in relation to the obligee. Therefore, even if the obligor reduces or loses the value of the security by disposing of the security to a third party, thereby causing danger to the obligee’s exercise of security right or the realization of the claim,

The above legal principle also applies to the cases where the obligor arbitrarily disposes of the movable property mortgaged under the Factory and Mining Foundation Mortgage Act in order to secure a pecuniary obligation.

[2] In principle, where 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 where both parties are obliged to perform the obligation in accordance with the terms and conditions of the contract, barring any special circumstance, the seller is not in a position to handle his/her business against the buyer, and thus, even if the seller disposes of the property on the other hand, the crime of breach of trust is not established under the Criminal Act.

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 the buyer’s business, and thus, even if the seller disposes of it to another person without the transfer of ownership, the breach of trust is not established

1. Each part of the crime of breach of trust against the victim non-indicted 2 corporation

A. 1) The crime of breach of trust is established when a person who administers another’s business obtains pecuniary advantage or causes damage to another person who is the subject of the business by having a third party acquire such pecuniary advantage through an act in violation of one’s duty. As such, the subject of the crime must be in the position of administering another’s business. Here, in order to be a “person who administers another’s business,” the subject of the crime must 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 must 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, and the typical and fundamental substance of the party’s property should be in the protection or management of another’s property based on a fiduciary relationship, which goes beyond the relationship of conflict of interest between the parties in ordinary business (see, e.g., Supreme Court en banc Decision 200Do7569, Feb. 29, 2009).

2) In relation to monetary claim obligations, even though a creditor lends money based on the debtor's trust in performance of his/her performance and obtains a benefit from satisfaction of his/her claim through the debtor's faithful performance of performance, the creditor cannot be deemed to have given his/her duty to protect or manage his/her property on the basis of the debtor's trust. The performance of his/her monetary obligation is performed by the debtor as the performance of his/her obligation, and thus, it cannot be deemed that the creditor administers the creditor's affairs. Therefore, in relation to the debtor's creditor, it cannot be deemed that

The same applies to a case where a debtor has agreed to, or created a mortgage on, a movable owned by a creditor in accordance with the Act on Mortgage on Motor Vehicles and other Specific Movables to secure a pecuniary obligation. A debtor’s obligation to provide a movable as a collateral, namely, a obligation to maintain, preserve, or not to damage, reduce, or destroy a collateral, or a passive obligation not to deliver a security to a creditor or his/her designated person at the time of the execution of a security right, etc. A debtor’s obligation to cooperate in the exercise of a security right, such as a obligation to deliver a security to the creditor or his/her designated person at the time of the execution of a security right, is all the obligor’s own payment obligation under a mortgage contract. Furthermore, a mortgage contract is a subordinate contract for the occurrence of a secured obligation, and the obligation to be borne by a debtor under a mortgage contract is to achieve the objective of a security, that is, the obligation to realize a claim through the exercise of a security right at the time of default, and thus, the typical and essential content of a party’s relationship still exists or repayment of a secured obligation (see, etc.

Therefore, the obligor’s performance of the above obligation is merely an obligor’s own business, and the obligor cannot be deemed to perform the obligee’s business on the basis of a fiduciary relationship with the obligee beyond an ordinary contractual relationship. Therefore, the obligor cannot be deemed to fall under “a person who administers another’s business” as the subject of breach of trust in relation to the obligee. Therefore, even if the obligor reduces or loses the value of the security by disposing of the security to a third party, thereby causing danger to the obligee’s exercise of security right or the realization of the claim,

3) The foregoing legal doctrine likewise applies to cases where an obligor disposes of at will a third party a movable on which a mortgage has been established under the Factory and Mining Foundation Mortgage Act to secure a pecuniary obligation.

4) In contrast, Supreme Court Decisions 2003Do67 Decided July 11, 2003 and 2010Do11665 Decided September 13, 2012, which held that, on the premise that the debtor who created a mortgage or factory mortgage on movable property falls under a person who administers another’s business, if the debtor disposes of collateral, the crime of breach of trust is established if he/she disposes of the collateral, shall be modified to the extent inconsistent with this Opinion.

B. We examine the judgment of the court below on the part of the above breach of trust in light of these legal principles.

1) The summary of this part of the facts charged is as follows: (a) the Defendant received each loan from the victim non-indicted 2 Co., Ltd. to purchase ○○ bus and △△△ bus, and each mortgage was established on each of the above buses; (b) although the Defendant had the duty to keep each of the above buses for the purpose of securing security, it would have acquired financial benefits and suffered financial losses and sustained financial losses to the victim by disposing of them. The lower court maintained the first trial judgment that convicted the

2) However, in light of the legal principles as seen earlier, even if each of the above buses was established for the purpose of securing the victim’s obligation, insofar as the Defendant could not be deemed to have been in charge of the victim’s business on the basis of a fiduciary relationship with the victim, the Defendant cannot be deemed to constitute “a person who administers another’s business” in the crime of breach of trust in relation to the victim. Therefore, even if the Defendant disposed of each of the above buses as stated in the facts charged, the crime of breach of trust is not established. Nevertheless, the lower court convicted the Defendant of this part of the facts charged on the premise that the Defendant was in a position of a person who administers another’s business by bearing the duty to preserve each of the above buses until the time the Defendant repaid the victim’s obligation to the victim

2. The part on breach of trust against the victim non-indicted 1

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 accordance with the terms and conditions of the contract falls under “one’s own business” barring special circumstances. As a seller in a contract of sale and purchase of movable property is not in a position to handle his/her business against the buyer, even if the seller disposes of the property on the other party, the crime of breach of trust is not established under the Criminal Act (see, e.g., Supreme Court en banc Decision 2008Do10479, Jan. 20,

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 the buyer’s business, and thus, even if the seller disposes of it to another person without registering the transfer of ownership, the breach of trust is not established

B. We examine the judgment of the court below on the part of the above breach of trust in light of these legal principles.

1) The summary of this part of the facts charged is that even if the Defendant intended to sell one of the △△△△△ bus to the victim Nonindicted Party 1 for KRW 36 million, the Defendant received payment of KRW 20 million as a down payment and an intermediate payment from the victim, Nonindicted Party 3’s joint collateral security was created regarding the said bus, thereby having the said bus obtain property benefits and causing loss to the victim. The lower court maintained the first trial judgment that convicted the Defendant of the foregoing facts charged.

2) However, in light of the legal principles as seen earlier, even if the Defendant is liable to register the transfer of ownership of the above bus against the victim, such obligation is only the Defendant’s own business under the above sales contract, and cannot be deemed to have been carried out by the Defendant based on the fiduciary relationship with the victim, the Defendant does not constitute “a person who administers another’s business” as referred to in the crime of breach of trust in relation to the victim. Therefore, even if the Defendant created a joint collateral mortgage on the above bus as indicated in the facts charged, the crime of breach of trust is not established. Nevertheless, the lower court convicted the Defendant of this part of the facts charged on the premise that it falls under the crime of breach of trust. In so determining

3. The part concerning the victim non-indicted 4's violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Fraud), fraud, fabrication and uttering of private documents, the part concerning the victim non-indicted 5 and the victim non-indicted 6, and the part concerning the victim non-indicted 7's obstruction of right

For the reasons indicated in its holding, the lower court convicted each of the facts charged. Examining the reasoning of the lower judgment in light of the relevant legal doctrine and evidence duly admitted, the lower court did not err by exceeding the bounds of the principle of free evaluation of evidence inconsistent with logical and empirical rules, or by misapprehending the legal doctrine on the intent of deception and deception in fraud, and the intent to commit

4. Scope of reversal

For the foregoing reason, the part of the lower judgment regarding the crime of breach of trust against the victim Nonindicted Co. 2 and the victim Nonindicted Co. 1 among the lower judgment should be reversed. Since the lower court rendered a single sentence on the ground that this part and the remaining guilty part are concurrent crimes under the former part of Article 37 of the Criminal Act, the part of the lower judgment

5. Conclusion

Therefore, without further proceeding to decide on the remaining grounds of appeal, the guilty part of the judgment below is reversed, and that part of the case is remanded to the court below for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices.

Chief Justice Kim Jong-soo (Presiding Justice)