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The defendant shall be innocent.
Reasons
1. The summary of the facts charged is as follows: (a) the Defendant was delegated by C to sell the Hyeong-gun D land owned by C (hereinafter “instant land”); (b) entered into a sales contract with C to include the remainder of KRW 3 million on the date of the contract, while receiving the down payment of KRW 47 million from the date of November 11, 2008; and (c) the Defendant paid the remainder of KRW 47 million from November 11, 2008; and (d) included the costs, etc. for the development of the instant land (such as the purchase of the instant land, and the measurement of the land, etc. to bear all the costs incurred in the maintenance of the land) in the balance.
Since the victim subsequently disbursed KRW 10,386,645 as development costs for the instant land, the Defendant, who was delegated to sell or purchase the instant land, was paid the remainder after deducting the development costs from the remainder of KRW 47 million, and at the same time, had the duty to complete the registration of ownership transfer to the victim.
Nevertheless, on June 13, 2011, the Defendant, in violation of the above duties, sold the above land to H in excess of KRW 50 million, and completed the registration of ownership transfer to H in such a manner. Around that time, the Defendant received KRW 50 million as the purchase price, thereby incurring property damage equivalent to the above amount to the victim.
2. Determination
A. Since the crime of breach of trust is established by a person who administers another’s business by acquiring pecuniary advantage through an act in violation of his/her duty, the subject of the crime must be in the position of administering another’s business.
Here, “a person who administers another’s business” is required to protect or manage another’s property on the basis of a fiduciary relationship between the parties, beyond a mere contractual obligation. If the business is not a business of another person but a business of one’s own, then the business is beneficial to the other person.