[1] Where a truster prepares documents necessary for the disposal of trust property in the name of the trustee without individual consent of the trustee, such act constitutes a crime of forging or uttering private documents

[2] The case holding that the comprehensive permission for the use of the name of the trustee granted to the truster is revoked where the trustee made a statement to the truster that he would not cooperate in the preparation of documents necessary for selling the trust property to another person, unless the trustee pays the truster a debt to him/her

[3] The case holding that a fraudulent act against a third party, which is a buyer, is committed in case where the title truster conceals the circumstances where the trustee, while entering into a contract to sell the trust property to a third party with the name of the seller as the trustee, opposing the sale of the above trust property and refusing to cooperate in the implementation of the procedure for sale

[1] In a case where a trust property is held in title by a truster without any burden on the truster, it is reasonable to deem that the trustee comprehensively permitted the disposal of the property and the use of its name to the truster in a case where the trust property is held in title by the trustee. As such, even if the truster did not obtain an individual consent from the trustee when preparing documents necessary for the disposal of the trust property in the name of the trustee, the crime of forging and uttering private documents is not established. However, in a case where there is a dispute over the ownership of the trust property between two persons, because the trustee denies the fact that the trust was held in title and claims that the trust property is owned by the trustee, etc., the trustee is not allowed to use the trustee’s name in relation to the disposal, etc. of the property, and even if the trustee does not deny the fact that the trust was held in title by itself, the same shall apply to the case where there is a circumstance to deem

[2] The case holding that the comprehensive permission for the use of the name of the trustee granted to the truster has been withdrawn where the trustee made a statement to the truster that he would not cooperate in the preparation of the documents necessary for selling the trust property to another person, unless the trustee pays the truster a debt to him/her

[3] The case holding that a fraudulent act against a third party, which is a buyer, is committed in case where the title truster conceals the circumstances where the trustee, while entering into a contract to sell the trust property to a third party with the name of the seller as the trustee, opposing the sale of the above trust property and refusing to cooperate in the implementation of the procedure for sale

[1] Articles 231 and 234 of the Criminal Act, Article 103 of the Civil Act / [title trust] / [2] Articles 231 and 234 of the Criminal Act, Article 103 of the Civil Act / [3] Article 347 of the Criminal Act, Article 103 of the Civil Act / [title trust]

[1] Supreme Court Decision 83Do1213 decided Oct. 25, 1983 (Gong1983, 1781) Supreme Court Decision 2006Do9425 decided Mar. 29, 2007 (Gong2007Sang, 646)

Defendant

Defendant

Attorney Seo Young-young et al.

Seoul High Court Decision 2006No2375 decided June 1, 2007

The appeal is dismissed.

The grounds of appeal by the defense counsel (including the public defender) are examined together.

1. As to the fabrication and uttering of private document, the preparation of private document for qualification, and the holding of such document

A. In a case where a trust property is held in title with no burden imposed on a truster, it is reasonable to deem that the trustee comprehensively permitted the disposal of the trust property and the use of its name to the truster with respect to the disposal of the trust property, barring special circumstances. Thus, even if the truster did not obtain an individual consent from the trustee when preparing documents necessary for the disposal of the trust property in the name of the trustee, the crime of forging and uttering private documents is not established. However, in a case where the trustee denies the fact that the trust was held in title while denying the trust, and there is a dispute over the ownership of the trust property between the truster and the trustee due to the assertion that the trust property is owned by the trustee, etc., it is no longer permissible for the truster to use the trustee’s name in relation to the disposal of the trust property (see, e.g., Supreme Court Decision 2006Do9425, Mar. 29, 207). The same applies to a case where even if the trustee does not deny the fact that the trust was held in title trust itself.

B. The court below acknowledged the facts as stated in its reasoning after compiling the evidence duly admitted, and determined on August 2005, that "I would not cooperate with the defendant in preparing documents necessary for selling to others the forest land of this case [it is the forest land purchased by the defendant from the non-indicted 2 and registered in trust with the non-indicted 1, so long as the defendant did not repay the loan to the non-indicted 1, it is equivalent to 826m2 out of 5,009m2 of the Dongg-si, Young-si, dong Dog-Eup, which is composed of the non-indicted 1; hereinafter the same shall apply], and at that time, the non-indicted 1 has already withdrawn the comprehensive permission for the use of the forest of this case, which was granted to the defendant in disposing of the forest of this case or in exercising other authority over the forest of this case at the time of the title trust agreement with the defendant, and therefore, the defendant was not authorized or authorized individually from the non-indicted 1 or the non-indicted 2's name as a title trustee.

In light of the above legal principles and records, the selection of evidence, fact-finding, and judgment of the court below are justified and acceptable. There is no error in the misapprehension of legal principles as to the disposal of trust property and the crime of forgery of document in title trust relation as alleged in the grounds of appeal, which affected the conclusion of the judgment.

2. As to the violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Fraud)

A. The deception as a requirement for fraud refers to any affirmative or passive act that widely assumes the duty of good faith and sincerity to each other in property transaction. It does not necessarily require false indication as to the important part of a juristic act, and it is sufficient to view that it is the basis of judgment for an actor to make a disposition of property which the other party wishes by omitting error. Thus, in a case where it is recognized that the other party to a general transaction would not have been engaged in the transaction if the other party to the transaction was notified of certain circumstances in light of the empirical rule of the transaction, a person who receives the property has a legal obligation to notify the other party of such circumstances in advance in accordance with the principle of good faith. Nevertheless, the failure to notify the other party of the fact that the transaction would mislead the other party (see, e.g., Supreme Court Decisions 2003Do7828, Apr. 9, 2004; 2003Do4531, May 27, 2004).

In addition, according to the evidence duly admitted by the court below, the defendant purchased the forest of this case from Nonindicted 2 and transferred the forest of this case to Nonindicted 1, who was the title trustee, under the sales contract, in title trust with Nonindicted 1, the title trustee, and the transfer registration of ownership was made immediately by Nonindicted 2, the seller, to Nonindicted 1, the title trustee, under the sales contract.

In the case of the so-called contract title trust in the above form, if Nonindicted 2, the seller, was unaware of such title trust relationship, Nonindicted 1, the trustee, shall be deemed to have acquired the ownership of the forest of this case, and if Nonindicted 2, the seller, was well aware of such title trust relationship, even if the title trust agreement becomes null and void by the provisions of Article 4 of the Act on the Registration of Real Estate under Actual Titleholder’s Name, and thus becomes null and void accordingly, in principle, the purchaser’s status under the sales contract does not naturally belong to the Defendant, the title truster, and only if special circumstances (the seller and the Defendant’s establishment of separate transfer agreement on the forest of this case) are acknowledged, there is room for the Defendant to file a claim for the registration of ownership transfer against Nonindicted 2, the seller due to such special circumstances (the establishment of separate transfer agreement) (see Supreme Court Decision 2001Da32120, Sept. 5,

B. In light of the above legal principles and the evidence duly admitted by the court below, in light of the facts as stated in its reasoning, it is difficult or very difficult for the defendant to transfer the ownership of the forest of this case to the victim, unless the non-indicted 1 explicitly expresses that he would object to the sale of the forest of this case and would not cooperate with the execution of the procedure following the sale, inasmuch as the non-indicted 1, who is the title holder of the forest of this case, had already withdrawn the permission for the use of the comprehensive title according to the previous title trust agreement to the defendant, who was the title holder of the forest of this case, and thereafter, did not allow the defendant to use the forest of this case. (If the defendant had not known at the time of the purchase of the forest of this case from the non-indicted 2, the non-indicted 2 could not transfer the ownership of the forest of this case to the victim, and even if the defendant knew that the non-indicted 2, who was the title holder of the forest of this case, had not known the title trust relationship between the defendant and the non-indicted 1, it needs to be established separately through the procedure.

Thus, under the principle of trust and good faith, the defendant is legally obligated to notify the victim of the above intention of Nonindicted Party 1 prior to the conclusion of the sales contract of this case with the victim, and it is reasonable to deem that the defendant concealed it and concluded a sales contract for the forest of this case in the name of Nonindicted Party 1 was deceiving the victim.

The judgment of the court below to the same purport is just and acceptable, and there is no error of law that affected the conclusion of the judgment due to the misapprehension of legal principles as to the termination of title trust and the deception of fraud, as alleged in the grounds of

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

Justices Kim Yong-dam (Presiding Justice)