A. Whether it goes against the principle of non-defluence in a case where the content of the abstract part of the facts charged is specified without modification of an indictment in order to clarify more clearly (negative)

B. Whether the crime of embezzlement constitutes a violation of Article 3 (1) 2 of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes, which constitutes the crime of embezzlement, constitutes a violation of the law that affected the judgment (negative)

(c) Where the chief director and representative director of a school juristic person cause damage to the school juristic person by disposing of the basic property of the school juristic person at a price much than the expected sales price of the school juristic person with permission of the supervisory authority, the time when the act

D. Whether the act of selling land owned by the chief director of a school juristic person at a significantly lower price than the resale price predicted in the school juristic person’s possession constitutes a breach of duty (affirmative), and whether the reason why the school juristic person’s resolution was adopted at the board of directors, or the reason why the school juristic person’s permission was not violated constitutes a ground for

A. In recognizing the criminal facts of the Defendants, it is not recognized that there is no new fact at all in the facts charged, but it does not go beyond the scope of identity of the basic facts if it is specified specifically in order to clarify the contents of the facts stated somewhat abstract in the facts charged, and it does not go beyond the scope of identity of the basic facts, and it does not put the Defendants at a disadvantage in exercising their rights to defense,

B. Even if the facts charged in the instant case are not the crime of breach of trust but the crime of embezzlement, the amount of property profit in this case is not less than one billion won but less than five billion won, and thus, the crime of embezzlement or the crime of breach of trust is a violation of Article 3 (1) 2 of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes, and the crime of embezzlement or the crime of breach of trust is an element of multiple acts of trust, and its

C. Since an act of selling basic property of a school foundation without permission from the supervisory authority violates Article 28(1) of the Private School Act, which alone is null and void, and it does not affect the property status of the school foundation. Thus, in a case where the chief director and the representative director of the school foundation dispose of the basic property of the school foundation at a price much lower than the expected resale price, thereby causing property damage to the school foundation, the time when the act of selling the basic property of the school foundation constitutes a breach of trust refers to the time when the act of selling the property upon entering into a sales contract with the purchaser in a situation where it becomes possible for the school foundation to dispose of it effectively with permission from the supervisory authority. The fact that all directors of the school foundation requested the purchase of the above land to the purchaser before obtaining permission from the supervisory authority, or that the purchaser accepted the request or concluded a provisional contract with the purchaser for the sale

D. In order to constitute a crime of breach of trust, an act in violation of one’s duty includes all acts in violation of a fiduciary relationship with the principal by failing to perform an act that is naturally expected under the provisions of the law, the content of the contract, or the good faith principle in light of the content and nature of the business that administers, or by performing an act that is anticipated not to perform as a matter of course. If the president of a school juristic person sells a parcel of land owned by the school juristic person at a price significantly lower than the resale price which is clearly predicted by being aware that the purchaser would resell the real estate immediately after the purchase thereof, which is the object of the sale, at a higher price than the sale price, the act in violation of his/her duty cannot be deemed as a breach of trust, and it does not constitute a loss to the school juristic person itself, and it does not constitute a breach of a fiduciary relationship with the board of directors of the school juristic person having the right to decide on the disposal of the property

A. Article 298 of the Criminal Procedure Act: Article 383 subparag. 1 of the Criminal Procedure Act; Article 355 subparag. 1 and 355 subparag. 2 of the Act on the Aggravated Punishment, etc. of Specific Crimes; Article 28(1)3 of the Private School Act; Article 355(2) of the Criminal Act

A. Supreme Court Decision 87Do546 delivered on July 21, 1987 (Gong1987,1427) 88Do592 delivered on June 14, 198 (Gong198,1048) 89Do1557 delivered on December 26, 1989 (Gong1990,428) 90Do94 delivered on March 13, 1990 (Gong1990,921) 2. Supreme Court Decision 75Do123 delivered on April 22, 1978 (Gong1975,842), 88Do1523 delivered on November 22, 198 (Gong1989,389) 198Do1979 delivered on March 27, 1985 (Gong1989,3898) 198Do1979 delivered on March 26, 1987).

Defendant 1 and one other

Defendants

Attorney Kim Jong-hwan et al.

Seoul High Court Decision 86No966 delivered on June 16, 1989

All appeals are dismissed.

With respect to the grounds of appeal by the counsel (including a public defender),

1. The summary of the facts charged against the Defendants recognized by the court of first instance is as follows.

Defendant 1 and the representative director of Nonindicted Co. 2 (hereinafter referred to as Nonindicted Co. 2), and Defendant 2, who are the representative director of Nonindicted Co. 3 (hereinafter referred to as Nonindicted Co. 3), the same affiliated company as the above educational foundation and Nonindicted Co. 2, to sell the instant land in accordance with the approval of the disposition of the Gyeonggi-do Educational Committee, which is the supervisory authority, at an appropriate price. However, Defendant 1 violated his duties, and the said supervisory authority’s disposal of the said land on Nov. 30, 1984; Nonindicted Co. 3, 2 and 3 of the above land were to be sold to Nonindicted Co. 3, 5, and to be sold to Nonindicted Co. 3, 196, 196, 100, 300 won, and 10,000 won of the above land to Nonindicted Co. 4, 5, and 30,000 won of the above land to be sold to Nonindicted Co. 1, 604.

2. The fact-finding of the court below is just and there is no violation of the rules of evidence, such as the theory of lawsuit, since the facts charged by the defendants can be acknowledged based on the timely evidence of the court of first instance supported by

3. In a case where there is no concern that the defendant's exercise of his right of defense may not materially disadvantage the defendant, the court does not violate the principle of no accusation even though the court acknowledged that the facts charged are somewhat different from the facts charged without going through the procedures of alteration of indictment in recognizing the facts charged (see Supreme Court Decision 87Do546 delivered on July 21, 1987; Supreme Court Decision 88Do592 delivered on June 14, 198).

Unlike the facts charged, the first instance court specifically specifies the fact of concluding a sales contract on the instant land between Nonindicted Co. 1 and Nonindicted Co. 3, but this does not recognize any new facts that are not all new facts in the facts charged, but specify the facts that are somewhat abstractly stated in the facts charged in order to clarify the contents thereof. This does not deviate from the scope of identity of the basic facts, nor does it give any substantial disadvantage to the Defendants’ exercise of their right to defense. In addition, the judicial effect of a sales contract between Nonindicted Co. 1 and Nonindicted Co. 3 on the instant land or between Nonindicted Co. 2, 3 and 3 does not affect the establishment of the crime of breach of trust.

In this case, even if the facts charged in this case are not the crime of breach of trust, as in the theory of lawsuit, but the crime of the theory is the violation of Article 3 also Paragraph 1 Item 2 of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes, which was convicted of property amount of not less than one billion won but less than four billion won, and the crime of the theory is the same as the one of the crimes of the theory, and since there is no difference in the balancing, it does not constitute a violation of the law which affected the judgment (see Supreme Court Decision 75Do123, Apr. 22, 1975; 8Do1523, Nov. 22, 198; 88Do1523, Nov. 22, 198). Accordingly, the judgment of the court of first instance or the court below cannot be deemed to have judged the facts which were not prosecuted, or there is no misapprehension of the legal principles as to the procedure for amending the indictment, and even if the court did not reverse

4. Article 28(1) of the Private School Act provides that when a school juristic person intends to sell its basic property or bear obligations, it shall obtain permission from the supervisory authority. Thus, the act of selling basic property or bearing obligations by the school juristic person without permission from the supervisory authority is null and void, and it does not affect the property status of the school juristic person in itself (see Supreme Court Decision 72Da598, Jun. 13, 197; Supreme Court Decision 86Meu2534, Apr. 28, 1987). Therefore, the Defendants committed the act of selling property in this case with the permission of the supervisory authority on March 26, 1985, where the Defendants were able to dispose of it effectively with the permission of the supervisory authority on the sale of the land in this case, they would immediately sell it by entering into a sales contract between the non-indicted juristic person and the non-indicted juristic person, and the Defendants’ request for the purchase of land in this case to the non-indicted juristic person 1 and the above company 3 were made.

The judgment below presented to the above purport is just and inconsistent with it cannot be adopted since it is merely an independent opinion.

5. The crime of breach of trust is established when a person administering another's business commits an act in violation of his duty and causes damage to the principal. Here, "an act in violation of his duty" includes any act in violation of the provisions of Acts and subordinate statutes, the contents of the contract, or the good faith principle, or any act in violation of the trust relationship with the principal by failing to perform as a matter of course an act in violation of the duty of management. (See Supreme Court Decision 83Do1568, Apr. 28, 1987; 87Do2339, Apr. 25, 1988). Since, as the chief director of the non-indicted 1 corporation, taking charge of the affairs of the non-indicted 1 corporation, and in particular, with the permission of the supervisory authority concerning the acquisition, management and disposal of the property, the act in violation of the duty of sale of the land in violation of the above duty of the non-indicted 1 corporation, which is the basic property of the non-indicted 1 corporation, is obviously unreasonable, and the duty of the non-indicted 1 corporation to sell the land.

6. In theory, the sale price of non-indicted 1 corporation to non-indicted 3 is the normal market price, and the resale price to non-indicted 3's third-income housing is not the normal market price, but the price of non-indicted 3's housing added to the land in this case, and it is one-way speculative price on the condition that it can build a high-rise apartment in the size of national housing at the same time. Nor can it be said that there is no significant difference between the sale price of the land in this case and the sale price of the land in this case as of May 24, 1984 and the market price of the land in this case as of February 5, 1985, the current appraisal price of the land in this case is KRW 79,329,245 as of February 1, 1985, and the price of the land in this case, which was newly determined by the urban planning restriction such as the price of the above land in the above land, and there is no clear premise that the above restriction is more impossible to construct the above price of the land in this case.

On the other hand, the Supreme Court held that the above disposal price of the non-indicted 3's housing was no longer than 1 billion won and that the above disposal price of the non-indicted 3's housing was no more than 1 billion won because the above disposal price of the non-indicted 3's housing was no more than 10 billion won, and that the above disposal price of the non-indicted 3's housing was no more than 10 billion won for the purpose of establishing new school facilities. However, the above disposal price of the non-indicted 2's housing was no more than 10 billion won for the reason that the above disposal price of the non-indicted 3's housing was no more than 10 million won for the reason that the non-indicted 3's disposal of the above land was no more than 3's disposal of the land, and it is difficult to accept the above defendant's assertion that the above disposal price of the land was no more likely to affect the price of the land. According to the reply of the first instance court for the fact-finding of the non-indicted 2's housing plan.

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

Justices Yoon Young-young (Presiding Justice)