(a) Where the establishment of the crime of breach of trust can be acknowledged to the transferor who double transfers the real estate in the name of a third party;

(b) The case holding that the act of the representative of a church entering into a double sales contract or setting up a security provisional registration without making such efforts despite the fact that it is possible to hold a general meeting of members and obtain a resolution of disposition constitutes a crime of breach of trust

A. A real estate seller is in the position of a person to conduct another's business, i.e., a person to conduct another's business, even if a sales contract is valid in terms of bonds, and thus, a seller may be punished as a breach of trust if he/she breached his/her duties, such as double sale of real estate. Even if the ownership of real estate at the time of the act of breach of duty is in the position of a third party, i.e., a buyer to conduct the registration of ownership transfer, if it is possible to conduct the registration of ownership transfer,

B. The case holding that the act of the representative of a church entering into a double sales contract or setting up a security provisional registration without making such efforts despite the fact that the representative of a church can hold a general meeting of members and obtain a resolution of disposition constitutes a crime of breach of trust

Article 355(2) of the Criminal Act

A. Supreme Court Decision 84Do984 delivered on November 12, 1985 (Gong1986,69)

A

Prosecutor

Attorney B

Seoul Criminal Court Decision 92No3310 delivered on August 14, 1992

The judgment of the court below is reversed and the case is remanded to the Panel Division of the Seoul Criminal Court.

We examine the prosecutor's grounds of appeal.

According to the reasoning of the judgment below, the court below held that the defendant, as a member of the C church, did not sell the instant real estate to G on May 22, 1990 and received the down payment and the first installment payment in order to grant the right of preferential sale to 200 square meters (hereinafter referred to as the "real estate in this case"), where the location next to the above business district E was specified as compensation in lieu of removing the above church's building constructed within the above business district, and decided to resell it together with one of the above church's house and the head, and that he did not hold the proceeds from resale to the resolution of the church's finance, and even though he received the proceeds in whole, he did not sell the said real estate to the victim F and received the proceeds, the defendant cannot be deemed to have obtained the consent of the court below on June 22, 1986, and therefore, he cannot be deemed to have obtained the right of joint defendants to transfer the ownership of the instant real estate in this case to the seller of the instant church, and therefore, he cannot be deemed to have sold the real estate to the seller's property in breach of trust.

The seller of real estate is in a position of the subject of the crime of breach of trust, i.e., a person to handle another's business, so if the seller double selling of real estate is in a position of the subject of the crime of breach of trust, and the seller commits an act of breach of trust, such as double selling of real estate, and even if the title of the real estate at the time of the act of breach of trust is in the future of a third party, not the seller, the seller can conduct the registration of ownership transfer, i.e., where the buyer is in a position to perform the registration of ownership transfer, the establishment of the crime of breach of trust does not interfere (see Supreme Court Decision 84Do984 delivered on Nov

However, if the first sale contract of this case is deemed to have been concluded between the C Educational Association and the victim F as shown in the judgment below, the resolution of the general meeting of the members shall be required in disposing of the properties of the non-corporate association, unless otherwise stipulated in the articles of association or regulations of the non-corporate association, and there is no such resolution and there is no special provision in the articles of association or regulations. Therefore, the C Educational Association, the seller, has no obligation to cooperate in the procedure for the registration of ownership transfer, and the representative shall not be the subject of the crime of breach of trust.

그러나, 기록에 의하여 살펴보면, 제1차 매매계약은 어디까지나 매도인이 피고인 개인으로 되어 있어 타인의 권리에 대한 매매계약의 성질을 가지고 있는 데다가, C교회가 서울특별시에 제1차 매수인인 피해자 F를 통하여 분양대금을 지급하였으므로 교회의 대표자인 피고인으로서는 언제든지 서울특별시로부터 C교회 명의로 이 사건 부동산에 대한 소유권이전등기를 경료받을 수 있는 형편에 있었고, 한편 피고인은 1969.5.경 스스로 C교회를 개척하여 당회장으로서 교회를 대표하여 오던 자로서 교인에 대하여 지대한 영향력을 끼치고 있었음을 엿볼 수 있을 뿐만 아니라, C교회는 비교적 소규모의 교회이고, 교인들의 대표격인 장로 I, 재직회장 집사 J 등이 제1차 매매계약의 이행을 보증하고 있으며, C교회가 재정난으로 D택지개발사업지구 내에 있던 교회건물의 철거를 당하면서 그 보상으로 서울특별시로부터 우선 분양받게 되는 종교용부지인 이 사건 부동산에 대한 매입대금을 마련할 형편에 있지 아니하고 그 매매대금으로 교회재정에 보태기로 하여 위 I, J등과 합의하여 이를 처분하였고 그 매매로 인하여 생긴 돈으로 C교회의 채무를 변제하는 등 교회재정에 보탰다는 것이므로 교인총회를 소집, 개최하였더라면 이 사건 부동산의 처분에 대한 결의를 얻어 냈으리라고 보이는 바, 그와 같은 지위에 있는 피고인이 제1차 매수인인 피해자 F 앞으로 소유권이전등기를 경료할 수 있도록 교인총회를 소집하여 그 처분결의가 있을 수 있도록 하는 등의 노력은 전혀 하지 아니하고 제1차 매수인으로부터 매매대금 전부를 다 지급받고서도 이중으로 매매계약을 체결하거나 담보가등기를 설정한 행위 등은 임무위배행위에 해당한다고 볼 수밖에 없다 할 것이다.

Nevertheless, the court below held that the defendant cannot be the subject of the crime of breach of trust solely on the ground that the first sale contract was concluded between the three parties and the victim F without examining such circumstances, and that the disposition was null and void due to the lack of the resolution of the general meeting of the members, the court below erred by misapprehending the legal principles on the subject of the crime of breach of trust, that is, the person who administers another's business, and thereby affecting the conclusion

Therefore, the judgment of the court below is reversed and 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.

Justices Kim Sang-won (Presiding Justice)