Where a constructor has newly built a multi-household house on the land owned by the victims and acquired the ownership of the land under the pre-payment for the purchase price and arbitrarily used the money borrowed as security, the case holding that the duties to use the loan within the scope of the purpose of the project do not constitute the duties of others in breach of trust.

Article 355(2) of the Criminal Act

Defendant

Prosecutor

Law Firm Geosung, Attorneys Kim Chang-hee et al.

Incheon District Court Decision 2007No724 Decided June 29, 2007

The appeal is dismissed.

We examine the grounds of appeal.

1. The facts charged of this case revealed that "the defendant, around October 2003, at the office of non-indicted 1 corporation (hereinafter "non-indicted company"), the defendant's 66 located in Dong-dong, Incheon (hereinafter "non-indicted 2"), the non-indicted 2, etc. constructed 18 households on the surface of 10 parcels of land, such as 66-292, 441, the victim non-indicted 2, etc. (hereinafter "multi-household house of this case"), constructed 11 households each of the above victims, and the remaining 11 households were sold in lots, but the defendant agreed to transfer the above 10 parcels of land to the victims for the convenience of construction of the above 10 parcels of land, and completed the registration of ownership transfer from the non-indicted 1,000,000 won for the above 10 parcels of land to the non-indicted 2,000,0000 won for the above 14,000,000 won of loan,00 won.

2. The crime of breach of trust is established when a person who administers another’s business obtains, or has a third party obtain, pecuniary benefits through an act in violation of his/her duty, thereby causing damage to the principal. In this case, “a person who administers another’s business” refers to a person who administers another’s business on the basis of a fiduciary relationship and acts on behalf of another person or cooperates in preserving another’s property (see, e.g., Supreme Court Decision 2003Do763, Sept. 26,

In full view of the relevant employment evidence, the court below held that the non-indicted company newly constructed the multi-household house in this case on the site of multi-household house owned by the victims and sold the remainder to the victims each by one household, and the victims transfer the site owned by the victims to the non-indicted company in lieu of the payment of the construction cost of each multi-household house in this case, and it is reasonable to find that the non-indicted company received the ownership of the above site from the victims as the pre-payment for the pre-sale price. According to the records, the above recognition and determination by the court below is just, and there is no violation of the rules of evidence against the rules of evidence, as alleged in the grounds of appeal.

Meanwhile, if the non-indicted company was transferred the ownership of the land owned by the victims as the pre-payment for multi-household housing in this case, the defendant, the representative director of the non-indicted company, has the duty to register the ownership of each household among the multi-household housing in this case to the victims, and such defendant's duty can be deemed to fall under another person's business in the crime of breach of trust. However, since the duty to manage and use the above loan within the scope of the purpose of construction of multi-household housing in this case as stated in the above facts charged cannot be deemed to be a simple duty of managing and preserving the victims' property, even if the defendant's duty is not a person who administers another person's business in the crime of breach of trust, it cannot be deemed to be a person who administers another person's business in the crime of breach of trust, and there is no evidence to prove that the defendant used the above loan for any purpose other than the purpose of construction of multi-household housing in this case.

Therefore, the court below reversed the judgment of the court of first instance which found the defendant guilty of the facts charged of this case and the decision of not guilty is just, and there is no error in the misapprehension of legal principles as to the person who administers another's

3. Therefore, the appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Hong-hoon (Presiding Justice)