Whether a donor is in a position of a person who administers another’s business, the subject of breach of trust, in case where a gift contract was made in writing (negative)

Where a contract of gift not made in writing has been made, the parties may rescind it at any time until the relevant gift is performed. Thus, even if the donor bears the obligation to transfer the ownership of the donated object to the donee pursuant to a verbal donation contract, the donor cannot be deemed to have the status of a person who administers the affairs of the donee

Article 355(2) of the Criminal Act

Defendant

Defendant

Daejeon District Court Decision 2005No140 Decided July 21, 2005

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

Where a contract of gift not made in writing has been made, the parties may rescind it at any time until the relevant gift is performed. Thus, even if the donor bears the obligation to transfer the ownership of the donated object to the donee pursuant to a verbal donation contract, the donor cannot be deemed to have the status of a person who administers the affairs of the donee

According to the records, the defendant was engaged in the business of cutting down and selling pine trees with the victim, etc., and the victim introduced a customer of pine trees at the time, and thus, it can be known that the defendant made an oral agreement to donate pine trees of this case to the victim. Thus, if there is such circumstance, the defendant may escape from the duty of transfer of ownership at any time by cancelling the donation agreement. Thus, the defendant cannot be said to be in the position of a person who administers the

In addition, the crime of breach of trust is established when a person who administers another's business obtains property benefits by an act of breach of trust and causes damage to the principal. According to the records, the defendant can only recognize the fact that he fells into a tree with no commercial value in the process of transplanting it to a remote place after receiving a request from a dry field owner where sys of this case were planted, and no evidence exists to deem that the defendant obtained a certain benefit from the above act.

Nevertheless, the court below found the defendant guilty of the charge of breach of trust is erroneous in the misapprehension of legal principles as to the crime of breach of trust or by misunderstanding facts against the rules of evidence, which affected the conclusion of the judgment. Therefore, the ground of appeal pointing this out has merit.

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. It is so decided as per Disposition.

Justices Kim Hwang-sik (Presiding Justice)