The debtor's disposal of the property transferred for security and whether the crime of breach of trust is committed (affirmative)

In a case where a debtor transfers movable property owned by him/her to a creditor by way of possession and alteration in order to secure a pecuniary obligation, it shall be deemed that the so-called weak security transfer has been established. Thus, the debtor is obligated to keep the movable property in custody so that the creditor can attain the purpose of security, and thus, he/she is in the position of a person who administers his/her business to the creditor. Thus, in a case where the debtor unfairly reduced the value of security by disposing of the movable

Article 355(2) of the Criminal Act

Supreme Court Decision 77Do1715 delivered on November 8, 197, Supreme Court Decision 80Do2097 Delivered on November 11, 1980

Defendant

Defendant

Seoul Criminal Court Decision 82No1451 delivered on June 11, 1982

The appeal is dismissed.

The grounds of appeal are examined.

In a case where a debtor transfers movable property under his/her possession to a creditor in order to secure a monetary obligation, and the debtor has to continue to occupy such movable property by an alteration of possession, it is reasonable to deem so-called, barring any special circumstances. In this case, the ownership of movable property is merely transferred under a trust, and thus, it is prohibited that the debtor has a duty to withhold the ownership of the movable property in the internal relationship between the creditor and the debtor, but it is prohibited that the creditor has a duty to keep it in the internal relationship between the creditor and the debtor so that the mortgagee can achieve the purpose of the security, thereby disposing of, destroy, damage, or reduce the value of the security. Therefore, if the debtor, who is the debtor, is in the position of a person who administers his/her business against the creditor in accordance with the above agreement, the crime of breach of trust under the Criminal Act is established (see Supreme Court Decisions 77Do1715, Nov. 8, 197; 80Do2097, Nov. 11, 1980).

However, in full view of the evidence in the first instance court's decision maintained by the court below, the defendant concluded an export contract with the victim Choyang, who was represented by the non-indicted 1, 1979, on behalf of the non-indicted 1, 1979, which operated in Paris for import, and entered into an export contract with the baggage transporter, at a par value of 2,400,000 won for export performance guarantee, and paid for the manufacturing cost of the exported goods at a discounted price. Since the credit arrives from the above fixed level and collected the export price, the above amount of the bill was liable for return equivalent to the above face value. The defendant, at the victim's request, provided the victim with an amount equivalent to 4,20,000 won at the market price of the machinery owned by the defendant on March 29, 1980 to secure the above obligation, and the possession of the defendant had been notarized by the contract that the defendant would continue to enter into the contract with the defendant. The court below held that the above obligation was equivalent to the above non-indicted 305, 1,0050.

In comparison with the reasoning of the judgment of the court below and the judgment of the court of first instance, the court below's action is just, and there is no violation of the rules of evidence or any error of incomplete deliberation, such as the theory of lawsuit, and there is no violation of the rules of evidence or the argument that the sentencing is excessive in this case where imprisonment for less than 10 years has been sentenced since the first instance court. Thus, all arguments are without merit.

Therefore, the appeal is dismissed. It is so decided as per Disposition by the assent of all participating judges.

Justices Shin Jong-young (Presiding Justice)