Whether selling a mortgaged vehicle without the consent of the mortgagee constitutes a crime of breach of trust (negative in principle)

In the event that 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, the mortgage does not affect the mortgage, so the mortgager merely sells an automobile which is the object of the mortgage to another person, barring any special circumstances, thereby establishing a crime

Article 355(2) of the Criminal Act

Defendant

Defendant

Gwangju District Court Decision 2007No2724 Decided April 11, 2008

The judgment of the court below is reversed, and the case is remanded to the Gwangju District Court Panel Division.

The grounds of appeal are examined.

In the event that 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 the owner is different, the mortgage does not affect the mortgage, so the mortgager merely sells an automobile which is the object of the mortgage to another person, unless there are special circumstances, does not constitute a crime of

According to the records, since the defendant borrowed KRW 30 million from the victim and set up a right to collateral security on the passenger vehicle in this case, the defendant committed an act in violation of his duties by selling it to another person even though there is a duty to preserve and manage the passenger vehicle in this case for the victim, and thus, the defendant did not affect the right to collateral security even if the owner of the vehicle in this case is changed, so the defendant's act of selling the vehicle in this case does not constitute a crime of breach of trust, barring any special circumstances.

Nevertheless, the lower court found the Defendant guilty of the charge of breach of trust on the ground that the crime of breach of trust is established in the event of selling at will a vehicle with a collateral security right without the consent of the mortgagee. In so doing, the lower court erred by misapprehending the legal doctrine of breach of trust, which affected the conclusion of the judgment, and the ground of appeal pointing this out is with merit. The Supreme Court precedents cited by the lower

Therefore, without examining the remaining grounds of appeal, the judgment of the court below is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Si-hwan (Presiding Justice)