The act of a mortgagee to make a provisional registration on the mortgaged real estate for debt collection after the due date for payment, to borrow money by establishing a collateral security, and to the nature of the crime of breach of trust (negative)

Even if a creditor has made a provisional registration again in the name of a third party in lieu of realizing, disposing of, or disposing of an object of security for transfer by exercising a security right after the maturity date, or by borrowing money from the money, and appropriated the balance thereof to repay the claim for transfer security, the debtor shall not be deemed to have any disadvantage compared to the realization or appraisal disposition as he did not lose the right to recover the object of provisional registration or the registration of collateral security. Thus, barring any special circumstance to deem that the act of establishing security interest by the transferor for debt collection is contrary to the intention of the party, it cannot be readily concluded that the act of establishing security interest by the transferor for debt collection constitutes an act of disposal of illegal

Article 355 of the Criminal Act

Supreme Court Decision 76Do4180 Delivered on May 24, 1977

Defendant

Defendant

Attorney Kim Jong-young, and Jung-young

Daejeon District Court Decision 82No154 delivered on May 26, 1982

The judgment below is reversed, and the case is remanded to Daejeon District Court Panel Division.

Defendant’s defense counsel’s grounds of appeal are also examined.

1. According to the reasoning of the judgment of the court of first instance maintained by the court below, the court of first instance lends the amount of KRW 3,00,000 to the person who did not have the right to reimbursement at 3% per annum, and completed the principal registration of the transfer of ownership on the real estate in this case as a security through a provisional registration under the name of the defendant with respect to the right to reimbursement of KRW 5,340,000 by realizing the above secured real estate, and even though there is a duty to return the balance, the court below, in violation of the duty, borrowed KRW 5,00,000 from Kim Jong-hwan to the real estate in this case as security, borrowed KRW 8,00,000, and completed the provisional registration and the establishment registration of the right to collateral security under the name of the person who did not have the right to reimbursement, thereby causing property damage equivalent to the above amount to the victim and obtaining profit equivalent to the above amount, and then the defendant is liable for the crime of

2. In general, in the case of transfer for security within a weak meaning, a mortgagee may consider the method of so-called settlement of disposal, which is to be returned to the debtor when the mortgagee pays the amount in excess of the amount of the credit by paying to the debtor the amount of the credit and acquires ownership of the object, by means of realizing the collateral and appropriating the satisfaction of the credit by exercising the security right after the due date.

However, even if an obligee again made a provisional registration in the name of a third party in lieu of realizing, disposing of, or disposing of the property transferred for security by way of exercising a security right after the maturity date, or borrows money from a collateral to borrow money, thereby appropriating the balance thereof to repay the claims transferred for security, it cannot be deemed that the obligor is more unfavorable than the realization disposition or appraisal disposition as it did not lose the right to recover the claims transferred for security by attaching provisional registration or registration of collateral, and thus, barring any special circumstance contrary to the intention of the parties, barring any special circumstance, it cannot be readily concluded that the act of setting security by the mortgagee for debt collection is an act of disposal of unlawful

On May 24, 197, Supreme Court Decision 76Do4180 Decided 76Do4180 Decided 24, 197, when a mortgagee created a mortgage on an object of security for transfer to secure a third party's obligation, it shall be deemed as a breach of trust in the event that the mortgagee created a mortgage on the object of security for transfer to secure a third party's obligation, but it differs from the case in which the mortgagee created

3. Therefore, even if the Defendant, a mortgagee in this case, completed provisional registration and establishment registration of a mortgage over the transferred property, such as the time of the original adjudication after the due date for payment, if it was done by means of the execution of a security right to appropriate the repayment of the transferred property in the instant case with the money borrowed from the above Kim Jong-hwan in accordance with the Defendant’s vindication, such act cannot be deemed as an unlawful act in violation of the security right holder’s duty, barring any special circumstances. Moreover, the Defendant cannot be deemed as having committed a breach of trust against the Defendant

The court below should have deliberated more on whether the creation of a security right in the future of the above Kim Jong-hwan was done by means of exercising the security right, such as the defendant's vindication, and whether the method of exercising the security right is against the will of the parties, and should have judged whether the requirements for the crime of breach of trust are satisfied and whether

Nevertheless, the court below determined that the above provisional registration and the registration of establishment of a mortgage was an act of breach of trust immediately. It cannot be said that there was an error of law by misapprehending the legal principles of breach of trust concerning the exercise of security rights by a mortgagee, failing to exhaust all necessary deliberations, which affected the conclusion of the judgment, and the argument

Therefore, the judgment of the court below is reversed and the case is remanded to the Daejeon District Court Panel Division. It is so decided as per Disposition by the assent of all participating judges.

Justices Lee Lee Sung-soo (Presiding Justice)