In a case where the obligor, in accordance with the Act on Mortgage on Motor Vehicles and other Specific Movables to secure a pecuniary obligation, agreed on or set up a mortgage on the movable property owned by the obligor to set up a mortgage on the obligee, whether it constitutes a “person who administers another’s business,” who is the subject of the crime of breach of trust in relation to the obligee’s relationship (negative), and in a case where the obligor, in a manner that reduces or loses the value of the security by disposing of the security to a third party, thereby causing danger to the obligee’s exercise of security right or the realization of the claim thereby, whether the crime of breach of trust is established (negative)

Article 355(2) of the Criminal Act; Articles 2, 3, and 5 of the Act on Mortgage on Certain Movables including Automobiles; Articles 10, 13, 52, and 53 of the Act on Mortgage on Factories and Mining Foundations

Supreme Court en banc Decision 2020Do6258 Decided October 22, 2020 (Gong2020Ha, 2236)

Defendant

Both parties

Changwon District Court Decision 2019No2649 decided July 17, 2020

All appeals are dismissed.

The grounds of appeal are examined.

1. As to the prosecutor's grounds of appeal

In cases where a debtor agrees to, or created a mortgage on, movable property owned by the debtor in accordance with the Act on Mortgage on Motor Vehicles and other Specific Movables to secure a pecuniary obligation, etc., the debtor's obligation to provide the movable property as a security, i.e., the obligation to maintain, preserve, or not to damage, reduce, or destroy the value of the security, and the obligation to cooperate in the creditor's exercise of the security right, such as the obligation to deliver the security to the creditor or his/her designated person at the time of the exercise of the security right, is the debtor's own payment obligation. Therefore, the debtor's performance of the above payment obligation is limited to the debtor's own business, and the debtor cannot be deemed to have been entrusted with the creditor's business based on a fiduciary relationship with the creditor beyond an ordinary relationship with the creditor. Therefore, in relation to the debtor, even if the debtor's disposal of the security to a third person causes a decrease or loss of the value of the security right and thereby causing danger to the creditor's exercise of the security right or the realization of the claim, the above legal principle applies to the debtor's mortgage.

For the reasons indicated in its holding, the lower court acquitted the Defendant on the ground that there was no proof of crime regarding the part on breach of trust among the facts charged in the instant case. Examining the reasoning of the lower judgment in light of the relevant legal principles and records, the lower court did not err in its judgment by misapprehending the legal doctrine

2. As to the Defendant’s ground of appeal

According to the records, the Defendant appealed against the judgment of the court of first instance, and asserted only unfair sentencing as the grounds for appeal against the obstruction part. In such a case, the allegation that the lower court erred by misapprehending the legal principles as to the obstruction part of the exercise of rights is not a legitimate ground for appeal

3. Conclusion

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

Justices Lee Dong-gu (Presiding Justice)