(영문) 서울중앙지방법원 2018.12.26. 선고 2018고합612 판결

However, the execution of each of the above punishment against the Defendants shall be suspended for two years from the date this judgment became final and conclusive.

Reasons

Criminal history room)

From August 2013, Defendants were engaged in the business of selling them in lots, raising funds, etc. while operating D(hereinafter referred to as D) and E(hereinafter referred to as E(hereinafter referred to as “E”) practically, which owns C hotel & Ri (hereinafter referred to as “C hotel”) from August 2013.

1. Establishment of the right to collateral security (F), G, and H;

On May 9, 2015, the Defendants entered into a sales contract with the victimJ for KRW 104,65,00 for the sale price of KRW 104,65,00 in the C hotel sales office located in Gangnam-gu Seoul, Seoul on May 1, 2015, and received KRW 11,465,52 as the down payment on May 9, 2015, and KRW 40,862,208 as the intermediate payment on May 19, 2015, and received KRW 40,862,208 as the intermediate payment on May 19, 2015, and received down payment and intermediate payment on the outstanding payment date, and at the same time, there was a duty to receive the balance on the outstanding payment date and to implement the ownership transfer registration procedure to the said victims.

Nevertheless, on April 20, 2016, the Defendants offered C hotel F, G (victim K), and H (victim L) as joint collateral and borrowed money, and made a registration of the establishment of a mortgage with the maximum debt amount of KRW 360,00,000 at the same time to the mortgagee M. Accordingly, the Defendants conspired to commit a violation of the above occupational duty, thereby causing damage equivalent to the amount of money equivalent to the security value of each real estate to the victims listed in [Attachment] Nos. 1 through 3 of the crime list, including obtaining pecuniary benefits equivalent to the security value of the secured claim provided as joint collateral.

2. Establishment of the right to collateral security of Nhos and 0;

On April 17, 2015, the Defendants entered into a sales contract with the victim V to KRW 104,579,000, respectively, for the sales price of KRW 50,000,000 for contract gold and intermediate payment from the victim V on April 20, 2015, and the Defendants received KRW 10,000,000, respectively, for contract gold and intermediate payment from the victim V, and at the same time there was a duty to receive balance on the balance date and to implement the registration procedure for ownership transfer to the victim V.

Nevertheless, on April 21, 2016, the Defendants offered C hotel Nos. n and heading as joint collateral and borrowed money to the mortgagee W, X, and Y Co., Ltd. at the same time with the establishment registration of the mortgage amount of KRW 90,000,000.

As a result, the Defendants conspired in violation of the above occupational duties and acquired property benefits equivalent to the secured value of the above N N and each sub-paragraph provided as joint security and caused damages equivalent to the same amount to the victim V.

3. Establishment of a right to collateral security;

On July 2, 2015, the Defendants entered into a sales contract with the victim for 123,81,000 won for sales in the C hotel sales office, and on October 30, 2015, the Defendants received KRW 51,524,100 under the pretext of down payment and intermediate gold from the victim Z on October 30, 2015, and at the same time, there was a duty to receive the remainder on the remainder date and to pay the victim Z with the performance of the procedures for transfer registration of ownership.

Nevertheless, on April 21, 2016, the Defendants offered C hotel P head as a joint collateral and borrowed money to B/X and Y Co., Ltd. with the establishment registration of a mortgage-mortgage amounting to KRW 90,000,000.

As a result, the Defendants conspired in violation of the above occupational duty, thereby obtaining property benefits equivalent to the security value for the secured claim provided as joint security, and causing damages to the Z equivalent to the same amount.

4. Establishment of a right to collateral security against Qhead;

On November 6, 2015, the Defendants entered into a sales contract with the victim L/C hotel Q to KRW 104,751,000 for sales price, and received KRW 10,477,100 as the down payment on November 2, 2015, and KRW 41,900,400 as the intermediate payment on November 20, 2015, respectively, the Defendants received the remainder on the remainder date and received the remainder on the remainder date and performed the registration procedure for transfer of ownership from L/C from the victim L.

Nevertheless, on April 21, 2016, the Defendants provided C hotel Q as a joint collateral and borrowed money to the mortgagee W, X, and Y Co., Ltd. with the establishment registration of the mortgage amount of KRW 90,000,000.

As a result, the Defendants conspired in violation of the above occupational duty, thereby acquiring property benefits equivalent to the security value for the secured debt of Q Q head offered as joint security, and causing damages equivalent to the same amount to L.

5. Establishment of the right to collateral security against AA and AB 3);

On April 17, 2015, the Defendants concluded a sales contract with the victim AC for the sales price of KRW 104,646,00 in the C hotel sales office located in Gangnam-gu Seoul on April 17, 2015, and concluded a sales contract with the victim AC for KRW 31,393,800 as the down payment on April 20, 2015, and KRW 20,929,200 as the intermediate payment on April 25, 2015, and received KRW 20,929,200 as the intermediate payment on April 25, 2015, and received the down payment and intermediate payment on the remainder date, there was a duty to receive the balance on the remainder date and at the same time to implement the ownership transfer registration procedure to the above victims.

Nevertheless, on April 21, 2016, the Defendants offered C hotel AA and AB (victim AJ) as joint collateral and borrowed money, and simultaneously made a registration of creation of a mortgage over the maximum debt amount of KRW 90,000,000 to AK and AL.

As a result, the Defendants conspired to act in violation of the above occupational duty and thereby acquired property benefits equivalent to the security value of the secured claim of the above AA provided as joint collateral and inflicted damages on the victim AC equivalent to the same amount, and thereby inflicted damages on the victims set forth in Nos. 8 through 9 of the list of crimes in the attached Form No. 9.

6. Establishment of a collateral security right against AD;

On July 1, 2015, the Defendants entered into a sales contract with the victim AmD for 102,395,000 won at the C hotel sales office, and received KRW 51,197,50 as the contract deposit and intermediate payment on July 1, 2015 from the victim AmM on July 1, 2015, and at the same time, there was a duty to receive the balance on the remainder date and to make the victim AmD perform the procedures for ownership transfer registration.

Nevertheless, on April 21, 2016, the Defendants provided C hotel AD as a joint collateral and borrowed money from a mortgagee AK and AL with a maximum debt amount of KRW 90,000,000.

As a result, the Defendants conspired in violation of the above occupational duty and acquired the pecuniary benefits equivalent to the security value for the secured debt of the above AD offered as joint security, and caused damages equivalent to the same amount to AM.

7. Establishment of a right to collateral security against AE;

On July 1, 2015, the Defendants entered into a sales contract with the victim AE at the C hotel sales office for the purchase price of KRW 104,579,00,000, and received KRW 52,289,500 as the contract deposit and intermediate payment on July 1, 2015 from the victim AMF, so there was a duty to receive any balance on the remainder date and at the same time to perform the procedure for the transfer registration of ownership to the victim AMF.

Nevertheless, on April 21, 2016, the Defendants provided C hotel AE as a joint collateral and borrowed money from a mortgagee AK and AL with a maximum debt amount of KRW 90,000,000.

As a result, the Defendants conspired in violation of the above occupational duty and acquired the pecuniary benefits equivalent to the security value of the secured debt provided as joint security under the above AE and caused damages equivalent to the same amount to the victims AM.

8. Establishment of a right to collateral security ofN;

On May 25, 2015, the Defendants entered into a sales contract with the victim AO for the purchase price of KRW 104,579,00 in the above C hotel sales office, and received KRW 7,457,00 for the first down payment on May 14, 2015, and the second down payment of KRW 7,457,00 for the second down payment on May 25, 2015, and the intermediate payment of KRW 41,831,600 on June 6, 2015, at the same time, the Defendants received the remainder on the remainder date and received it from the victim A0 for the performance of the procedures for ownership transfer registration.

Nevertheless, on May 2, 2016, the Defendants, in violation of the above occupational duty, provided C hotelN as a joint collateral and borrowed money, and provided a mortgage-holder AP with the establishment registration of a mortgage of KRW 240,000,000 with the maximum debt amount. Accordingly, the Defendants conspired in violation of the above occupational duty, thereby obtaining pecuniary benefits equivalent to KRW 79,183,673 equivalent to the security value for the secured debt of the above NN provided as a joint collateral, and thereby causing damage to AO equivalent to the said amount.

9. Establishment of AR-mortgage;

On January 19, 2015, the Defendants entered into a sales contract for KRW 104,603,00 for the purchase price of KRW 104,603,00 for the victim Q Q and C hotel AR at the hotel sales office, and received KRW 1,000 for the first contract deposit on January 30, 2015, KRW 10,000 for the second contract deposit on February 3, 2015, KRW 9,920,704 for the first intermediate payment on April 4, 2015, and KRW 30,000 for the intermediate payment on March 24, 2015, and KRW 1,380 for the intermediate payment on March 25, 2015, and received ownership transfer registration for the remainder from the victim on the job-related date.

Nevertheless, on May 10, 2016, the Defendants provided C hotel AR as a joint collateral and borrowed money, and made a registration of establishment of a mortgage over KRW 1,560,000 with the maximum debt amount of KRW 1,560,000 to AS Co., Ltd.

As a result, the Defendants conspired in violation of the above occupational duties and thereby acquired the pecuniary benefits equivalent to the security value of the secured debt of the above AR offered as joint security and caused the damage equivalent to the same amount to the victim A Q.

Summary of Evidence

1. Defendants’ partial statement

1. The witness AJ, M.T, AU’s each legal statement, part of the witness B’s legal statement (limited to the defendant A)

1. Each police interrogation protocol of the Defendants, AV, and AW

1. Each police statement made to AC, AX, and AJ;

1. AC's statement;

1. Written complaint, full certificate of registered matters, advertisement for sale in lots, guest room contract, real estate lease contract, electronic finance contract, etc., receipt, deposit details, auction information, etc., Seoul Central District Court 2016Kadan512603 mediation statement, investigation report (report on attachment of AO sales contract and payment receipt by AJ)

Application of Statutes

1. Article applicable to criminal facts;

◎ 피고인들 : 각 형법 제356조, 제355조 제2항

1. Commercial competition;

◎ 피고인들 : 각 형법 제40조, 제50조(범죄일람표 순번 제1 내지 3번 기재 업무상 배임죄 상호간, 범정이 가장 무거운 범죄일람표 순번 3번 기재 업무상배임죄에 정한 형으로 처벌, 범죄일람표 순번 제4, 5번 기재 업무상배임죄 상호간, 범정이 더 무거운 범죄일람표 순번 5번 기재 업무상배임죄에 정한 형으로 처벌. 범죄일람표 순번 제8, 9번 기재 업무상배임죄 상호간, 범정이 더 무거운 범죄일람표 순번 9번 기재 업무상배임죄에 정한 형으로 처벌)

1. Selection of punishment;

Defendants: Imprisonment Decision

1. Aggravation for concurrent crimes;

6. Defendants: Each of the crimes of occupational breach of trust set forth in the former part of Article 37, Article 38(1)2, and Article 50 of the Criminal Act (an aggravated punishment for concurrent crimes of occupational breach of trust set forth in No. 12)

1. Suspension of execution;

◎ 피고인들 : 각 형법 제62조 제1항(아래 양형의 이유 중 유리한 정상 참작)

Judgment on the Defendants and defense counsel's assertion

1. Summary of the assertion

(a) common arguments;

◎ 피해자들 소유의 C호텔 객실(이하 '이 사건 각 객실'이라고 하고, 개별 객실을 표시할 때는 별지 범죄일람표 순번에 따라 '이 사건 제○번 객실'이라고 한다)에 대한 소유권이전의무는 피고인들 자신의 사무로서, 피고인들은 타인의 사무처리자에 해당하지 않는다.

① The Defendants urged the victims to pay the balance and received a loan by providing the instant guest room as collateral for construction cost as the victims continued to delay the payment of the balance, and the victims were willing to cancel the pertinent guest room’s right to collateral and complete the registration of ownership transfer when they paid the balance, and the victims did not raise any objection even though they knew that the security right was established in the pertinent guest room at the time of the conclusion of the contract for sale and purchase, or even though the guest room was subject to the secured trust after the contract was concluded, the victims did not raise any objection. As such, the Defendants’ act of establishing the right to collateral does not constitute a breach of the duty of breach of trust, or there was no intent to commit a breach of trust against the Defendants.

B. Defendant A’s assertion

Since the subject of the C hotel sales business is Defendant B and Defendant A merely performed the duties and help Defendant B, Defendant A did not have conspired with Defendant B.

2. Relevant legal principles

A. The binding force of a contract may be freely set aside at the stage of paying only the down payment in the real estate sales contract. However, when a contract is fully implemented, such as the payment of the intermediate payment, etc., the seller may not escape from the duty to transfer the ownership of the real estate to the buyer, unless the contract is revoked or rescinded. Therefore, the seller is in a fiduciary relationship in which the buyer cooperates with the buyer in preserving the buyer’s property and protects and manages pecuniary interests. From that time, the seller is deemed to fall under a “person who administers another’s business” as referred to in the crime of breach of trust. From that time, the seller disposes of the real estate to a third party before transferring the ownership of the real estate in accordance with the terms and conditions of the contract, and completes registration following such disposal to a third party. This is an act of undermining the buyer’s acquisition or preservation of the real estate, thereby establishing a crime of breach of trust (see, e.g., Supreme Court en banc Decision 2017Do4027, May 17, 2018).

B. In order to establish the crime of breach of trust, in addition to the awareness that the act is in violation of one's duty as a subjective requirement, it is necessary to acquire the benefit of himself or a third party and cause damage to the principal. As such, if the purpose of establishing the right to collateral security was to eliminate the physical burden existing on the object of sale by cancelling the mortgage which had already been established on the object of sale, as stated by the defendant, it is difficult to deem that the criminal intent of breach of trust exists. However, if the defendant denies the criminal intent of breach of trust by asserting that the defendant had committed the act at issue for his own interest, it is difficult to prove that the facts constituting the subjective element of the crime of breach of trust in nature of the object are proved by the method of proving indirect facts that have considerable relevance with the intention (such as intention, motive, etc.). Even if the defendant had expressed his/her intent to pursue his/her own interest, if it is proved that he/she had the intention to gain or cause damage to the principal, the criminal intent of breach of trust was committed (see, e.g., Supreme Court Decision 97Do197Do2999.

3. Determination

A. Whether the person is a business manager of another person

Based on the above legal principles, the Defendants concluded each contract for the sale of the guest rooms of this case with the victims and received the down payment and intermediate payment from the victims, and thus, they are obligated to complete registration of ownership transfer, barring any special circumstance. Therefore, it is reasonable to view that the Defendants were in the position of a person who is in charge of another’s business to cooperate in the registration of ownership transfer while preserving the ownership of each guest room of this case for the victims. Accordingly, the above assertion by the Defendants and the defense counsel is rejected.

B. Determination on the act of breach of trust and intent of breach of trust

The following facts are acknowledged by the evidence duly examined by the court: ① The Defendants inflicted losses on the victims by disposing of the establishment of the right to collateral security without the consent of the victims even though they concluded a contract for the sale of the instant guest room and received the down payment and the intermediate payment; ② The Defendants borrowed the funds for each guest room in the instant case and did not pay any balance after the victims discussed in advance with the victims, they could take measures with the consent of the victims; ③ even if some of the victims delayed the payment of balance due to the contract, such circumstance alone does not immediately justify the Defendants’ establishment of the right to collateral security on the guest room; ④ In the instant case, the Defendants’ establishment of the right to collateral security security was cancelled for some of the guest rooms in each of the instant contract for sale of the instant case, and the purpose of the sale of the instant real estate for the purpose of the establishment of the right to collateral security security was to remove the ownership of each of the instant real estate for the purpose of the establishment of the right to collateral security (the ownership of each of the instant real estate for the purpose of the establishment of the right to collateral security.)

In full view of the fact that the trust registration was completed on July 28, 201, the Defendants’ act of establishing a right to collateral security constitutes an act of breach of trust, which lacks trust relationship with the victims, and the Defendants’ intent to cancel the right to collateral security against the guest room is sufficiently recognized. Furthermore, even if the Defendants had the intent to cancel the right to collateral security against the guest room upon the receipt of the balance from the victims, it cannot be said that the intent of breach of trust is denied (in fact, the victim AC did not cancel the right to collateral security against the victim's guest room, even if the Defendants did not pay the balance on July 28, 2016, even if the Defendants did not cancel the right to collateral security against the victim's guest room and did not complete the ownership transfer registration).

C. Determination as to Defendant A’s conspiracy relation

In light of the following circumstances acknowledged by the evidence duly adopted and examined by this court, Defendant A appears to have set up a right to collateral security for each guest room of this case while operating a C hotel sales business with Defendant B, etc., and Defendant A in collusion with Defendant B may sufficiently recognize that the crime of this case was committed. Accordingly, the above assertion by Defendant A and the defense counsel is not acceptable.

① consistently in the investigative agency and this court, Defendant B consistently proposed the first acceptance by Defendant A, and six of which are the six of them, around August 2013, and the remaining four of them were each acquired in the name of E, around July 2014. Defendant A with a share of 16.7% (based on the register of shareholders) and with Defendant A and B with a share of 16.7% from the time of the acceptance. Some of the guest rooms were sold in lots to cover construction costs. Each guest room of this case was offered as security and the remainder was not paid in April 2016. Such decision was determined by both Defendant A and others.

In addition, the defendant A stated to the effect that he did not participate in the next year by leaving all debts around October 2016 to operate the C Hotel independently.

② The Defendant also proposed at an investigative agency that the Defendant would operate a C hotel jointly with the Defendant B. From January 2015 to November 2016, the Defendant jointly operated the said hotel, and Defendant B was the president and Defendant B used the name as the president. around March 2016, Defendant B and Defendant B decided to offer and borrow money as security. From November 2016, Defendant B was omitted in the operation of the hotel and Defendant B was operated solely by himself. The responsibility for setting up a collateral on each of the instant guest rooms lies in himself/herself.

③ At the time of commencement of 'AT' in this court, BB corporation, which was in charge of the construction of C hotel, stated that Defendant B was operated by Defendant B, etc., but later, Defendant B became aware that it was operated as a partnership with Defendant A, etc., and the above AU of the company also stated to the effect that Defendant B was not determined by itself in connection with 'C hotel construction' in this court, and that the final decision is deemed to have been made by Defendant B with Defendant A, B, and B, and that the C hotel is known to have been operated as a partnership with Defendant B. Thus, it conforms to the above statements by the Defendants as a substitute.

1. The grounds for sentencing: Imprisonment with prison labor for not more than 15 years;

2. Scope of recommended sentences according to the sentencing criteria; and

【Scope of Recommendation】

Type 2 (not less than KRW 100 but less than KRW 500,00) Basic Area (8 months to 3 years)

* descriptive criteria: 1-stage increase in type as a result of adding up the same competition;

3. Determination of sentence;

The following circumstances and the Defendants’ age, character and conduct, environment, motive and background of the crime, means and consequence of the crime, and the circumstances after the crime, etc., shall be determined as ordered by comprehensively taking into account all the factors of sentencing as shown in the trial process of this case.

0. Unfavorable circumstances: The crime of this case is committed in violation of the duty of the defendants to conclude a sales contract with the victims and receive a down payment and an intermediate payment, and complete the registration of ownership transfer to the victims, and thereby causing damage to each guest room of this case without the consent of the victims. The crime of this case is not proper in light of the number of victims, the amount of damage, etc.

○ favorable circumstances: It is difficult to deem that the Defendants committed the instant crime in bad faith, and each of the instant guest rooms was offered as security due to the delay in the payment of the balance arising from the sales contract, the need for additional construction, etc. in the course of the implementation of the sales contract, and the victims’ payment of the balance seems to have been intended to cancel the right to collateral security against the pertinent guest room. As such, the motive or circumstance of the commission of the crime appears to have been taken into account. The victim V and A0 units of guest room are deemed to have already been cancelled and the damage was recovered. There is no history of punishment against the Defendants exceeding the suspended sentence of imprisonment.

Judges

The presiding judge, judge and presiding judge;

Judges Lee Jong-soo

Judge Kang Han-soo

Note tin

1) As to the facts charged in the instant case, the Defendants are based on the circumstances acknowledged by the evidence duly examined by the court.

To the extent that it does not disadvantage the exercise of the right of defense, the following criminal facts shall not be modified as follows:

had been.

2) In addition to the above N and 0, the prosecutor provided four real estate as a joint security by adding up P and Q as seen below.

The indictment was written to the effect that the mortgage was created, but according to the evidence, P subparagraph 2 of R2 and Q subparagraph 3 of T 3

Since it can be recognized that the above two real estate was provided as a separate joint collateral, breach of trust by establishing a collateral on the above two real estate.

The above shall be written in installments.

3) In addition to the above AA and AB, 4 real estate in combination with AD and AE, as described below, shall be offered as one joint security.

The indictment was written to the effect that the mortgage was created. However, according to the evidence, AD subparagraph 3G and AE are as follows.

AH 3rd AI provided as a separate joint security, so the mortgage theory for the above two real estates can be recognized.

The act of breach of trust shall be divided into paragraphs and entered.

4) Some crimes of occupational breach of trust are not subject to the sentencing criteria in the commercial competition relationship, but the above crimes are subject to the sentencing criteria.

Since the crime of gratuitous breach of trust and the crime of concurrent crimes under the former part of Article 37 of the Criminal Code are concurrent crimes, the scope of recommendations and sentences for each crime to which

Imprisonment shall be observed by the lower limit (eight months of imprisonment).