[1] In the case of double selling of real estate, where the seller performs the duty of transfer of ownership to the prior buyer, whether the crime of breach of trust is established against the subsequent buyer (negative)

[2] The time of double transfer of real estate and commencement of the crime of breach of trust

[1] Article 355 (2) of the Criminal Act / [2] Articles 355 (2) and 359 of the Criminal Act

[1] Supreme Court Decision 92Do1223 delivered on December 24, 1992 (Gong1993Sang, 661), Supreme Court Decision 2008Do11722 Delivered on February 26, 2009 (Gong2009Sang, 401) / [2] Supreme Court Decision 83Do2057 Delivered on October 11, 1983 (Gong1983, 1683), Supreme Court Decision 84Do691 Delivered on August 21, 1984 (Gong1984, 1584), Supreme Court Decision 2002Do7134 Delivered on March 25, 2003 (Gong116)

Defendant

Defendant and Prosecutor

Law Firm Barun, Attorney Park Jae-sik

Seoul High Court Decision 2009No1444 decided December 10, 2009, and 2009 early 467 compensation order

All appeals are dismissed.

We examine the grounds of appeal.

1. Judgment on the Defendant’s grounds of appeal

The selection of evidence and the recognition of facts belong to the full authority of the fact-finding court unless they are against logical and empirical rules. Examining the reasoning of the judgment below in light of the records, it is just for the court below to find the defendant guilty of the crime of violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Fraud) as stated in its reasoning. There is no error of law such as

2. Judgment on the grounds of appeal by the prosecutor

In the case of double sale of real estate, the seller’s performance of the duty to transfer ownership to the prior buyer cannot be deemed as unlawful in breach of his duty in relation to the buyer (see, e.g., Supreme Court Decisions 92Do1223, Dec. 24, 1992; 2008Do11722, Feb. 26, 2009). In addition, in the case of double transfer of real estate, if the seller did not receive only the down payment from the second buyer and the intermediate payment was not received, it cannot be deemed that there was the commencement of the crime of breach of trust (see, e.g., Supreme Court Decisions 83Do2057, Oct. 11, 1983; 2002Do7134, Mar. 25, 2003).

After recognizing the facts as indicated in its reasoning based on the evidence adopted, the lower court: (a) completed September 1, 2006 after the promise for payment in kind was made on January 11, 2006; (b) determined that the registration of a trust was completed in accordance with Article 2 of the Special Agreement on June 27, 2005; (c) even if the registration of a trust was completed with respect to ○○ II 507, 307, and 307 following the promise for payment in kind, and the trust was made on behalf of Nonindicted Party 1, the pre-contracted’s pre-sale trust, and thus, (d) the Defendant could not be deemed as a breach of duty in relation to Nonindicted Party 1, the pre-sale, the pre-sale beneficiary, and (e) the pre-sale, the first-sale trust property, and (e) the first-sale trust property, and (e) the first-sale trust property, ○○ 500,504, the first-sale trust property.

Furthermore, the lower court determined that the Defendant’s above act does not constitute a crime of attempted breach of trust in relation to Nonindicted Party 1, on the ground that: (a) the Defendant violated the promise for payment in kind; (b) sold the commercial site ○○○○○ Three on June 13, 2007 to Nonindicted Company 4 (the representative director Nonindicted Party 5); (c) received the down payment KRW 2 billion on June 14, 2007; (d) it cannot be said that the Defendant did not have commenced the crime of attempted breach of trust since it

In light of the above legal principles and records, the judgment of the court below is just, and there is no error of law such as violation of the rules of evidence, misunderstanding of facts, or misunderstanding of legal principles as to the establishment of breach of trust.

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 Kim Young-ran (Presiding Justice)