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무죄
(영문) 수원지법 1986. 6. 26. 선고 84고단3561 판결 : 항소
[배임피고사건][하집1986(2),476]
Main Issues

In case where the owner who has concluded a sales contract for a new building between the creditor and the creditor as security of loan debt notifies the representative of creditor group composed of other creditors in the state of bankruptcy of the fact of the sales contract and transfers all rights on new building, the nature of the crime of breach of trust

Summary of Judgment

If the owner of a building who concluded a sales contract for a new building between the creditor and the creditor as security of the borrowed debt transfers all rights to the new building to the representative of creditors group composed of the other creditors because of the deterioration of the price situation, and notifies the fact of sale, then the creditor who purchased the above building would have suffered losses, it cannot be said that the defendant's act would violate the duty of the creditor who sold the building, or would inflict losses on the creditor as such.

[Reference Provisions]

Article 355(2) of the Criminal Act

Escopics

Defendant

Text

The defendant is innocent.

Reasons

The facts charged of this case are as follows: (a) the defendant constructed three units of apartment building with 100 units of apartment building with 100 units of commercial building after obtaining a building permit in the name of (title omitted) limited partnership company on the ground of Ansan-dong (name omitted); (b) on April 30, 1982, the defendant entered into a contract to sell the first floor of the above commercial building to the victim non-indicted 1 for 21,000,000 units of the above commercial building and paid the price in full; and (c) on June 25 of the same year, the defendant sold all the second floor of the above commercial building to the non-indicted 1 at the apartment sales office and received the payment in full; (d) despite the duty to transfer the ownership of the above real estate after completion of construction, the defendant violated the part of the above commercial building, which made the above non-indicted 1's disposal of the whole part to the non-indicted 1's claim amount of 00 units of the above commercial building to the above non-indicted 30.

Therefore, the above new construction of the first and fourth new construction of the non-indicted 3 was made in the name of the defendant and the witness and the non-indicted 1 and the non-indicted 2's statement prepared by the public prosecutor and the judicial police, each copy of the sales contract in the name of the defendant and the non-indicted 1, a certified copy of the register prepared by the registration office in Suwon District Court, and a copy of the confirmation reply prepared by the non-indicted 3, etc., the defendant constructed more than 10 units and one commercial building on the ground of the non-indicted 3's construction permission around 1981, and the non-indicted 3 (the non-indicted 1 and the non-indicted 4)'s new construction of the above new construction of the 19th new construction of the 3th new construction of the 19th new construction of the above 4th new construction of the 19th new construction of the 19th new construction of the 3th new construction of the 19th new construction, and the non-indicted 3's new construction of the 14th new construction.

However, the Defendant, as to the instant building, stated that the sales contract concluded with Nonindicted 1 was aimed at securing the principal and interest of Nonindicted 3’s loan obligation for Nonindicted 1, and that all of the liquidation rights on the instant building was delegated to the representative of the claim group, and was asked for the settlement thereof, and denied the criminal intent of breach of trust. As such, according to the statement made by Nonindicted 2 in the witness’s court during the 6th trial record, as seen earlier, the Defendant entrusted the representative of the claim group with all of the liquidation rights on the said new building on September 1982 to the representative of the claim group, and the representative of the claim group to the effect that “the instant building was sold in lots to Nonindicted 1 as security for the loan obligation for Nonindicted 3’s loan obligation,” and thereafter, it can be acknowledged that the Defendant and Nonindicted 1 knew that it was delegated to the representative of the claim group and the settlement rights of the instant building, and that it was known that it was possible for the representative of the claim group to confirm the entire construction and the settlement rights of the instant building.

Therefore, it cannot be deemed that the defendant committed an act in violation of his duty against Non-Indicted 1, or caused damage to Non-Indicted 1 when he delegated the representative of the creditors group with all of the liquidation authority on the whole of the above new building including the right to dispose of the building of this case on September 1, 1982, and there is no other evidence to acknowledge the criminal intent of breach of trust. Thus, the facts charged of this case fall under the case where there is no proof of crime, and thus, the latter part of Article 325 of the Criminal Procedure Act applies, and the defendant

It is so decided as per Disposition for the above reasons.

Judges O Sang-sung

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