If a seller who has removed a ground building and delivered it to deliver the site, files for provisional registration of the building before the expiration of the contract, the nature of the breach of trust (affirmative)

Even though a seller of a building site and a building agreed to remove a building on the ground and make a registration of destruction within six months after receiving the remaining price, if provisional registration was completed in the third party after receiving the remaining price, such so-called seller's act is not only a violation of the duty of removal of a building on the ground and performance of removal of a building on the ground, but also a violation of the buyer's duty of transfer of ownership in the future. Such so-called "act prior to the agreed time limit for removal of a building," and even if such act was done prior to the agreed time limit for removal of a building, such act constitutes

Article 355(2) of the Criminal Act

Defendant

Defendant

Attorney Kim Hong-chul

Seoul Criminal Court Decision 79No4613 delivered on July 7, 1981

The appeal is dismissed.

The defendant's defense counsel's grounds of appeal are examined.

With respect to No. 1:

According to the evidence of the first instance court's judgment maintained by the court below, it can be sufficiently recognized that the defendant sold the factory buildings on the site and its ground to the third-party stock company in the original form as the reasons stated in its holding, even if examining the record, it cannot be confirmed that the sales contract of the lawsuit concerning the sale and purchase of real estate was altered or forged, and there is a misunderstanding of the facts in violation of the rules of evidence or incomplete deliberation, such as the theory of lawsuit, in the process of the preparation of evidence and fact-finding of the first instance court. Therefore, there is no argument.

With respect to the second ground:

As the judgment of the court of first instance affirmed by the court below, if a provisional registration was completed to preserve the third party's right to request the transfer of ownership against a ground building after the defendant voluntarily removed the building for the buyer within six months after receiving the remaining price and agreed to complete the procedure for the registration of destruction and removal, the defendant's act of violating the buyer's duty to register removal and removal of the ground building for the buyer as well as the buyer's right to exercise ownership against the third party's right to request removal and removal of the building. Meanwhile, as long as the defendant promised to remove the building by the due date and could not perform the duty to remove the building, the buyer can not be seen as being subject to restrictions on the ownership due to the provisional registration for preserving the third party's right to claim the transfer of ownership against the building by the third party (this cannot be seen as a violation of the buyer's duty of removal and removal of the building before the first instance court's decision. Thus, the decision of the court below that the first instance court erred in the misapprehension of legal principles as to the seller's duty to remove the building before the first instance decision.

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

Justices Yoon Il-young (Presiding Justice)