The case holding that when entering into a lease contract on a building with a right of lease on a deposit basis, the act of establishing a separate right of lease on a deposit basis with a prior priority than the above right of lease on a deposit basis cannot be deemed as an act of breach of trust against the person having the right of lease on a deposit basis.

When concluding a lease contract on a leisure building and building site which are created by a mutual savings and finance company in front of the said right to collateral security, the owner of the building who agreed to obtain a loan from the bank at the order following the said right to collateral security was unable to obtain a loan, unlike the initial plan, with the said right to collateral security granted by the said mutual savings and finance company without cancelling the said right to collateral security, if the value of the said building and building exceeds the aggregate amount of the maximum debt amount and the obligation to refund the deposit security deposit amount set forth in the first priority order than the said right to collateral security granted by the said mutual savings and finance company without cancelling the said right to collateral security, if the auction procedure on the said building and building was conducted, then the said right to collateral security was sold below the aggregate amount, or if there was a tax claim more priority than the said right to collateral security than the dividend of the successful bid price, it cannot be deemed that the owner of the building lost the ability to return the deposit security interest by the establishment of the right to collateral security on the said two occasions.

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

Defendant

Defendant and Prosecutor

Seoul Criminal Court of the first instance (88 Highly 690), Incheon District Court (88 High Court Decision 1895, 89 Highly 6465 (Joint Judgment))

The Seoul Criminal Court Decision 88 Gohap856 decided among the judgment below shall be reversed.

The charge of violating the Act on the Aggravated Punishment, etc. of Specific Economic Crimes is acquitted

The appeal against the defendant and prosecutor's Incheon District Court Decision 88 Godan1895, 89 Godan465 is dismissed, respectively.

The application for compensation of this case is dismissed.

The summary of the grounds for appeal regarding the case involving the defendant and his defense counsel's 88No3784 case is as follows: first, at the time when the defendant entered into a charter party agreement with the non-indicted 1 and the non-indicted 1 and the non-indicted 1 who borrowed a considerable amount of money from the bank sphere as collateral of the above loan, the defendant agreed to register the establishment of a right to lease on a deposit basis with the non-indicted 1; second, according to this agreement, the defendant established a right to collateral to collateral and received a loan from the Jungyangyang Mutual Savings Bank, and then made the registration of the establishment of a right to lease on a deposit basis to the non-indicted 1; second, the actual debt amount of the above large mutual savings and finance company secured by the defendant's mortgage at the time is 370 million won, and the market price of such women is 70 million won, the defendant's claim for the return of the right to lease on a deposit basis with the non-indicted 1's right to lease on a deposit basis is sufficiently guaranteed.

First, according to the evidence duly admitted by the court below after examining the grounds for appeal regarding the violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes by the defendant 8 high-class 856, the defendant constructed a 4th floor above the 1st floor above the 1st floor above the 409 square meters deep-si site located in the 1987.3.27.10.20.20. (The reason why the above registration was made late with respect to the above building is because the above building was not completed at the time of the establishment of a 10.8 billion won, and the defendant again established a 1.8 billion won high-end mortgage on the above building at the time of the above establishment of a 10.1 billion won high-end mortgage at the time of the above establishment of a 10.2 billion won high-end mortgage on the 1987.10 million won high-end loan to the above 10.2 billion won high-end credit finance company and the above 1.3 billion won high-end loan without the above 1.

Therefore, it is difficult for the Defendant to make a statement at the lower court regarding the above 10 million won as evidence consistent with the above fact of violation of the Act on the Aggravated Punishment, etc. of Specific Crimes. However, in light of the evidence seen below, Nonindicted 2, who arranged the above 10 million won loan contract between the Defendant and Nonindicted 1, stated that the above 40 million won loan was made even if the Defendant used the above building as collateral to the extent that it would be only secured by the right to lease on a deposit basis because it was located in the police. Of the above, Nonindicted 3, who received the above 10 million won loan from the above 40 million won loan from the above 50 million won bank, was unable to obtain the above 10 million won loan from the above 100 million won bank, and it was difficult for the Defendant to obtain the above 40 million won loan from the above 10 million won bank loan and to obtain the above 10 million won loan from the above financial institution. According to the ruling of the lower court and the first instance court, the above 400 million won loan agreement was concluded.

Therefore, the charge of violating the Act on the Aggravated Punishment, etc. of Specific Economic Crimes, among the facts charged in this case, should have been pronounced not guilty under the latter part of Article 325 of the Criminal Procedure Act because it constitutes a case where there is no proof of the criminal facts, but there is a error of finding the defendant guilty of the above facts charged, and this affected the conclusion of the judgment. Therefore,

Next, examining the reasons for the prosecutor’s appeal against the Incheon District Court Decision 88 High Court Decision 895, 89 High Court Decision 6465, supra, in light of various circumstances that are the conditions for sentencing specified in this case, even if the prosecutor’s circumstances are considered, the lower court’s sentencing is deemed appropriate and too unjustifiable, and thus, the reasons for appeal by the prosecutor are groundless.

Therefore, in accordance with Article 364(6) of the Criminal Procedure Act, the Seoul Criminal Court Decision 88 Gohap856 is reversed, and the pleading is followed, and the appeal against the defendant and prosecutor's Incheon District Court Decision 88 Godan1895, Godan6465 decided pursuant to Article 364(4) and Article 361-4(1) of the Criminal Procedure Act is dismissed, respectively. Since the applicant for compensation of this case is without merit, it is dismissed pursuant to Article 32(1) of the Act on Special Cases concerning the Promotion, etc. of Legal Proceedings. It is so decided as per Disposition.

Of the facts charged in the instant case, the Defendant: (a) constructed the market value of the 400 million won above the 1st floor above the 1st floor above the ground surface (number omitted) at the 409 square meters-dong, Seocheon-dong, 1987 from March 3 to September 26 of the same year; (b) established the right to collateral security at the maximum debt amount of 180 million won from the Gyeyang Mutual Saving and Finance Company in the site and building concerned; and (c) around October 26, 1987, the Defendant established the right to collateral security at the 1.3 billion won in the victim non-indicted 1 and the above (nivem omitted) in the Kao-dong, Seocheon-dong, Seocheon-si; and (d) there was no evidence to acknowledge the establishment of collateral security at the 30 million won in the name of the Mutual Saving and Finance Company on the charges of establishing the right to collateral security at the 130 million won following the 1st mortgage.

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

Judge Lee Young-young (Presiding Judge) Lee Ho-won