2. The act of double transfer or offer and the act of breach of trust

Even in cases where a debtor concludes a security agreement on a movable in order to secure the performance of a claim and possesses the movable by the method of possession or amendment, if the contents of the said security agreement merely takes the form of payment in kind for the security of the loan, barring any special circumstance, if the principal contents of the contract are the secured loan and the settlement procedure for the execution of the security right, the ownership of the movable is reserved by the debtor, and the obligation to perform the settlement procedure belongs to the debtor's own business, and even if the movable was again provided as security for another person by the same method without performing the settlement obligation, it cannot be said that there was an act of breach of duty, and it cannot be said that there was an initial creditor's loss of the security right or a decrease in the value of the security, etc., or that there was a risk of damage

Article 355(2) of the Criminal Act

Supreme Court Decision 80Do2097 Decided November 11, 1980, 85Do1493 Decided November 26, 1985, Supreme Court Decision 85Do554 Decided July 8, 1986

Defendant

Prosecutor

Daegu District Court Decision 85No1697 delivered on January 24, 1986

The appeal is dismissed.

We examine the grounds of appeal.

Even in cases where a debtor concludes a security agreement on a movable in order to secure the performance of an obligation and takes possession of the movable by the method of possession or amendment, if the contents of the security agreement at issue take the form of payment in kind for the security of the loan, barring special circumstances, if the principal contents of the contract are the security on the loan and the settlement procedure for the execution of the security right, the ownership of the movable is reserved by the debtor, and the obligation to perform the settlement procedure belongs to the debtor's own business, and even if the movable was again provided as a security for an obligation to another person without performing the settlement obligation, it does not constitute a crime of breach of trust (see, e.g., Supreme Court Decision 80Do2097, Nov. 11, 1980; 85Do554, Jul. 8,

In addition, if the first creditor provides a movable to the creditor as a security for the performance of an obligation, and thereafter he occupies the movable again by providing the same movable to the other creditor as a security for the performance of an obligation, and also the debtor occupies it as it is by the method of possession revision, any damage, such as loss of the security right or reduction of the value of the security, may not be caused

Therefore, the defendant's act of offering collateral for transfer of this case 2 shall not be deemed to have committed a breach of duty in the relationship with Kim Jong-young, at least in the first time, or there is a risk of causing a loss or damage to such Kim Young-young. Therefore, the court below's decision that the defendant's act does not constitute a breach of trust is just and there is no error of law as argued in the misapprehension of legal principles. The argument is groundless.

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

Justices Park Jong-hee (Presiding Justice)