(a) Whether a crime of breach of trust has been committed in case where a building under construction was sold in lots and a loan was obtained as security for the said building site (affirmative);

B. Article 3(1) of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes where the correct amount falls under any subparagraph of Article 3(1) of the Act.

(c) Where a seller of real estate borrows money from a third party after establishing a mortgage on such real estate before transferring the registration of ownership transfer, the amount of damages suffered by the purchaser;

A. Since the defendant sold a newly constructed building to the victims and received down payment and intermediate payment from the victims, if he violated the duty to make a registration of ownership transfer to the victims on the building and site after the completion of the construction, and thereby established a collateral security and received a loan on the said site, it does not affect the establishment of the crime of breach of trust even if the defendant had an intention to review the victims to make a registration of creation of a collateral security right after the completion of the construction, or obtained a loan by securing the building site during the construction period of the building sold in lots.

B. When the loss is inflicted on the crime of breach of trust includes the case where the risk of actual damage is caused, so even if the amount of damage is not clearly calculated, it does not affect the establishment of the crime of breach of trust even if the amount of damage is not clearly calculated, and if the amount falls under any subparagraph of Article 3(1) of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes, if it is not affected by the conclusion of the judgment applying the same

C. If the seller of real estate borrowed money from a third party before completing the registration of ownership transfer in the future of the buyer and registered the establishment of a neighboring mortgage as security, the loss suffered by the purchaser is equivalent to the secured debt secured by the right to collateral security.

Article 355 (2) of the Criminal Act, Article 3 (1) of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes

B. Supreme Court Decision 79Do2637 delivered on September 9, 1980

Defendant

Defendant

Attorney Kim Jong-chul

Seoul High Court Decision 86No2421 delivered on March 17, 1989

The appeal is dismissed.

1. We examine the first ground for appeal.

Examining the evidence of the court below and the court of first instance maintained by the court below in comparison with the records, since the defendant sold the office of the dududu building and office of the dududual building in question to the victims of this case and received down payment and intermediate payment from the victims, the defendant is preserving the site of each of the above buildings without any legal defect. Since each of the above buildings is completed and the defendant violated his duty to register ownership transfer to the victims as to the site of this case after the completion of the above construction, the court below did not err in the misapprehension of legal principles as to the aggregate amount of 18,440,000 won in the Seoul Trust Bank, etc., Co., Ltd., Ltd., and obtained some of the loans to the victims, and thereby, did not affect the conclusion of the judgment of the court below, and there is no error in the misapprehension of legal principles as to the acquisition of property benefits in the construction site of this case or in the misapprehension of legal principles as to the acquisition of property benefits in the construction site of this case after the completion of the construction project.

2. We examine the second ground for appeal.

In the case of the crime of breach of trust, the damage amount is not affected by the establishment of the crime of breach of trust even if the damage amount is not clearly calculated (see Supreme Court Decision 79Do2637 delivered on September 9, 1980). Even if the amount is calculated by calculating the amount of damages or the amount of profit, if the amount falls under any of the subparagraphs of Article 3(1) of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes, the error does not affect the conclusion of the judgment applying the same Act. Furthermore, as in the case of this case, if a real estate seller borrows money from a third party before it obtains a transfer of ownership, etc. from the buyer before it obtains a transfer of ownership, etc. and makes a transfer of ownership registration by collateral, the damage suffered by the buyer is the amount equivalent to the secured debt secured by the mortgage (see Supreme Court Decision 82Do2215 delivered on November 23, 1982).

However, the court below erred in calculating the amount of damages of the victims since the total amount of KRW 176,561,365 of the total amount of damages of the victims is calculated as the amount of damages of the victims. However, if the victims calculates the total amount of loans corresponding to the portion of the site which the victims bought in accordance with the records, the court below held that the amount of KRW 186,704,184 (1,200,000, X47.46/359.98 X 1,60,000,000, X18.07/1,104.62) is not affected by the defendant's so-called "Article 3 (1) 3 of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes, which is applied by the court below, since the conclusion of the court below is justifiable, and there is no error in the misapprehension of legal principles as to the calculation of damages in breach of trust.

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

Justices Kim Jong-ju (Presiding Justice)