(b) Embezzlement;

C. Breach of trust.

1. The previous precedents held that the crime of breach of trust under Article 355(2) of the Criminal Act is established in cases where a debtor transfers movable property owned by him/her to a creditor in order to secure a pecuniary obligation, and disposes of such movable property to another person. However, the Supreme Court en banc Decision 2019Do9756 Decided February 20, 2020 ruled that the act of breach of trust is not established in such a case by modifying the previous precedents. In cases where the debtor transferred movable property owned by himself/herself to a creditor to secure a monetary obligation with a third party and disposes of such movable property in collusion with the third party, the act of the debtor may not be established, and such third party cannot

The summary of the part of the charge of breach of trust is as follows. The Defendant, upon introduction of the Defendant, knew of the fact that W, borrowed KRW 34 million from X to the victim, provided the victim with Maart house (hereinafter “the movable property of this case”) as a security for transfer, and thus, there is a duty to faithfully manage the movable property of this case so that the purpose of the security can be achieved. However, the Defendant, in collusion with W, sold the movable property of this case at KRW 40 million to another person, acquired economic benefits and inflicted damage on the victim.

However, in light of the aforementioned legal principles, it cannot be deemed that the crime of breach of trust is established against the Defendant even if the Defendant, as recorded in the facts charged above, took over the instant movable property as a creditor against W for the purpose of collateral security, and the Defendant sold the instant movable property to another person in collusion with W. Nevertheless, the lower court convicted the Defendant of this part of the facts charged on the premise that the crime of breach of trust is established where the obligor who transferred the movable property to the obligee to secure a pecuniary obligation disposes of the movable property.

2. For the foregoing reasons, the part of the lower judgment in breach of trust among the judgment should be reversed. Since the lower court rendered a single sentence on the grounds that the part of the lower judgment and the remaining conviction are concurrent crimes under the former part of Article 37 of the Criminal Act, the lower

3. Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Jae-sik in charge

Justices Park Jae-young

Justices Noh Tae-ok