[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 seller is guilty of breach of trust against the subsequent buyer (negative)

[2] The case denying the establishment of a crime of breach of trust against the buyer in case where the apartment building-sale company had completed the establishment registration of a mortgage pursuant to the mortgage contract concluded with the financial institution prior to the sale without implementing the procedure for registration of ownership transfer to the buyer

[3] The meaning of "a person who administers another's business" as the subject of the crime of breach of trust

[4] In a case where a truster, who concluded a trust agreement with a truster on real estate management for a newly-built apartment and completed the transfer of ownership, arbitrarily sold the subject matter of trust to a third party and let a third party lease the apartment and receive a security deposit, the case holding that the truster's disposal of the subject matter of trust does not constitute a crime of breach of trust since it constitutes a truster's own business to preserve and manage

[1] In the case of double selling of real estate, the seller performed his duty of transfer of ownership to the prior buyer, and cannot be deemed as unlawful in relation to the buyer.

[2] The case denying the establishment of the crime of breach of trust against the buyer in a case where the apartment building-sale company completed the establishment registration of mortgage pursuant to the mortgage contract concluded with the financial institution prior to the sale without implementing the procedure for the registration of ownership transfer to the buyer

[3] Since the crime of breach of trust is established when a person who administers another’s business obtains pecuniary benefits by an unlawful act of breach of trust and causes damage to another person who is the principal agent of the business, the principal agent of the crime must be a person who administers another’s business. In order to be “a person who administers another’s business”, the principal agent of the crime must be a person who administers another’s business. In order to be “a person who administers another’s business,” the principal agent must be a person who protects or manages another’s property based on a fiduciary relationship, which goes beyond a mere contractual obligation. If the principal agent’s business is not a person’s own business

[4] In a case where a construction company of an apartment, which concluded a trust contract with a trust company to dispose of real estate for a newly-built apartment and completed the registration of transfer of ownership, arbitrarily sells the apartment to a third party, which is the object of the trust, and let the third party lease the apartment and get the security deposit, the case holding that the purpose of the trust contract is that the trust contract is not a breach of trust since it falls under the trust's own business of the construction-sale company, the truster's act of disposal since it

[1] Article 355 (2) of the Criminal Code / [2] Article 355 (2) of the Criminal Code / [3] Article 355 (2) of the Criminal Code / [4] Article 355 (2) of the Criminal Code

[1] Supreme Court Decision 92Do1223 delivered on December 24, 1992 (Gong1993Sang, 661) / [3] Supreme Court Decision 86Do2490 delivered on April 28, 1987 (Gong1987, 924) Supreme Court Decision 2008Do373 Delivered on March 13, 2008 (Gong2008Sang, 556)

Defendant

Defendant

Attorney Lee Do-apap

Seoul High Court Decision 2008No1610 decided December 4, 2008

The judgment below is reversed and the case is remanded to Seoul High Court.

We examine the grounds of appeal.

1. As to each breach of trust against the victim and the Korea National Oil Corporation for 2 others

A. The summary of each of the facts charged in this case is that the defendant is the representative director of the non-indicted 1 corporation. Since the non-indicted 1 corporation entered into a contract to sell the apartment among the non-indicted 1 corporation village (number omitted) constructed by the non-indicted 1 corporation to each of the above households and received the payment of each purchase price from them in full, despite the fact that there was a duty to transfer a complete ownership without any legal restriction, the above apartment was constructed in violation of the duty and thus, it was extended from the Korean bank (hereinafter "Korea bank") to the money (26 million won per 24 square household, 32 square household, 45 million won per 32 square household) borrowed from the Korean bank as security against the money (20,854,600,000 won per 20,000 won per 32 square household).

B. As to this, the court below accepted the judgment of the court of first instance, it cannot be deemed that the above victims knew that there was an agreement to establish a collateral mortgage on the apartment of this case at the time of the conclusion of the contract for sale in lots, or they concluded a contract with understanding or understanding it. In addition, in this case, the court below determined that the crime of breach of trust was established on the ground that the defendant, who is responsible for performing the duty to register the establishment of a collateral for the third party in violation

C. However, we cannot accept the above judgment of the court below.

In the case of double sale of real estate, it cannot be deemed that the seller breached his duty of transfer of ownership to the prior buyer, and then violated his duty in relation to the buyer (see Supreme Court Decision 92Do1223 delivered on December 24, 192, etc.).

However, the lower court acknowledged the following facts. On June 29, 2004, Nonindicted Co. 1 provided the instant apartment site to our bank as collateral, and received a loan of 16 billion won from our bank under the name of the maximum debt amount of 20,854,600,000 won from our bank. After completion of the instant apartment construction, when the registration of preservation of ownership was made on the apartment building, it agreed to sell the instant apartment to each of the above victims as stated in the facts charged in each of the instant charges after the agreement on additional security, and received full payment of the purchase price. After completion of the instant apartment site, Nonindicted Co. 1 made a registration of preservation of ownership on May 20, 2005 and made a registration of the establishment of a joint security with our bank on the same day.

Therefore, it is merely a performance of the obligation to establish a mortgage on June 29, 2004, when Nonindicted Co. 1 completed the registration of the establishment of a mortgage on the additional basis of the above additional provision of security, which was made against our bank by Nonindicted Co. 1. As such, Nonindicted Co. 1 completed the registration of the establishment of a mortgage on the instant additional provision of security pursuant to the above additional provision of security prior to the sales contract of each of the above victims. Thus, it cannot be said that the Defendant’s act of managing another’s business in relation to each of the above victims, and thus, the crime of breach of trust is established.

Nevertheless, the court below erred by misapprehending the legal principles as to the other party's business in the crime of breach of trust and thereby affecting the conclusion of the judgment. The defendant's ground of appeal pointing this out is with merit.

2. As to the violation of trust against the Korea Asset Trust Co., Ltd. (hereinafter “Korea Asset Trust”)

A. The summary of the facts charged in this case is that the defendant entered into a real estate management trust agreement with the injured party's asset trust at the Youngdong branch of the Gangnam-gu Seoul Samsungdong 9-21 on June 30, 2005 to trust the injured party with 27 households of the above apartment as stated in the list of crimes attached to the judgment of the court of first instance and transferred the ownership of each apartment on the same day to the above injured party. Thus, the above apartment shall not be allowed to lease the above apartment without the injured party's prior consent or to reduce the value of the apartment without the injured party's prior consent in accordance with the above trust agreement, although there was a duty of not to lease the above apartment without the injured party's prior consent, the above apartment was sold to the non-indicted 2 corporation on July 30, 2005 without the injured party's consent to sell it to the non-indicted 2 corporation and let it lease the apartment and get the deposit money to the non-indicted 2 corporation.

B. In response to the judgment of the court of first instance, the court below accepted the judgment of the court below, and held that Article 9 of the management and disposal trust agreement that the defendant entered into with the Korean Asset Trust with the victim "the truster (the defendant) shall continue to occupy and use the trusted real estate in fact, and shall bear all the expenses for the actual preservation and management of the trusted real estate, and shall not reduce the value of the trusted real estate by means of lease or any other rights, any change in the current state thereof, etc., if the truster did not obtain prior consent from the trustee. In the absence of the trustee, the truster shall not immediately notify the trustee of the occurrence of an accident, such as the destruction or damage of the trusted real estate." Thus, the defendant is only obligated to continuously occupy the real estate in this case, and shall not reduce the value of the trusted real estate by establishing the right, such as lease, or changing the current state of the trusted real estate without the consent of the victim, as stated in the facts charged, and in violation of his duties, sold the apartment real estate to the non-indicted stock company 2, thereby having acquired the trust property interest or acquired the trust property value, thereby hindering the trust property.

C. However, we cannot accept the above judgment of the court below.

Since the crime of breach of trust is established when a person who administers another's business obtains pecuniary benefits through an unlawful act of breach of trust and causes damage to another person who is the subject of the business, the subject of the crime must be the person who administers another's business. The subject of the crime of breach of trust must be the person who administers another's business. The subject of the crime of breach of trust in order to be "a person who administers another's business" refers to a person who administers another's business, beyond a simple obligation under a fiduciary relationship among the two parties, and must protect or manage another's property based on a fiduciary relationship. If the business is not a person's business but a person who administers another's business, and is not a person who administers another's business (see Supreme Court Decision 86Do2

According to the records, on June 30, 2005, the non-indicted 1 corporation entered into a trust agreement with the Korea Assets Trust on real estate management and completed the registration of transfer of ownership for the subject matter of trust in the future of the victim. The purpose of the trust agreement is to preserve and manage the trusted real estate and settle the settlement of realization at the time of default (Article 1 of the above contract) in order to guarantee the truster (the above victim)'s fulfillment of obligations or responsibilities for the trust trust purpose. However, Article 9 of the above trust agreement provides that the truster shall actually continue to possess and use the trusted real estate, and the truster shall bear all the expenses for the actual preservation and management of the trusted real estate, and the truster shall not reduce the value of the trusted real estate by means of the creation of a right, such as the lease, or modification of the current state, if the trustee has not given prior consent.

In full view of these facts and records, the above trust agreement was concluded for the purpose of securing real estate and there is no possibility that Nonindicted Co. 1 may dispose of the apartment of this case effectively due to the above victim’s transfer of ownership. The purpose of the agreement was achieved in the essential part of the apartment of this case, and the truster’s continuing possession and use of the apartment of this case, which is the object of trust, bears the cost of preservation and management and maintenance of the value of the apartment of this case is basically his duties for Nonindicted Co. 1. In addition, the obligation for the Korean asset trust of Nonindicted Co. 1, which is prohibited from reducing the value of the object of trust, is merely limited to the trust agreement’s obligation under the trust agreement, and it is difficult to view that the essential contents of the relationship between Nonindicted Co. 1 and Korean asset trust, are the duty of Nonindicted Co. 1, on the basis of trust relationship, to protect or manage the victim’s property. Therefore, the defendant cannot be deemed to be “person who administers another’s business.”

Therefore, the judgment of the court below on the premise that the defendant is a person in charge of another person's business is erroneous in the misunderstanding of legal principles as to other person's business.

3. As to the violation of the Housing Act

Based on its reasoning, the lower court upheld the first instance judgment that found guilty of this part of the facts charged. In light of the records, the lower court’s findings of fact and determination are justifiable, and there is no error of law such as misconception of facts as alleged in the

4. Conclusion

Therefore, the judgment of the court below is reversed (each of the reversed parts and the guilty part of this case are concurrent crimes under the former part of Article 37 of the Criminal Act, and a single sentence shall be sentenced to the whole of them. Accordingly, the judgment below shall not be reversed in its entirety) and the case shall be remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Hong-hoon (Presiding Justice)