Defendant

Maximum Handscopes

Attorney Sick-jin (Korean National Assembly Line)

A defendant shall be punished by imprisonment for not more than ten months.

Of the facts charged in the instant case, the charge of breach of trust is acquitted.

In fact, the defendant did not have any intention or ability to purchase the above real estate even if he received money as the down payment from the victim non-indicted 4 because he did not request the sale of the real estate on the land outside of 10 lots, on the side of the Simsan-si (hereinafter omitted).

On May 29, 2006, the Defendant introduced ○○ Real Estate Office located in Yangsan-si, Yangsan-si, as if the victim Nonindicted 4 was a person with the right to sell the said real estate (one-name Nonindicted 5), the Defendant stated that “The above real estate has been in possession of KRW 350,000,000 as a kind of property, and the purchase of this would be a large amount of money within a few months. The Defendant would be a down payment of KRW 50,000,000,000, and Nonindicted 5 would be an early car of the owner of this real estate.”

The Defendant received 50 million won from the victim’s place.

Accordingly, the defendant deceivings the victim, thereby deceiving 50 million won.

1. Defendant's legal statement;

1. Each police interrogation protocol against Nonindicted 6 and 5

1. The police statement of Nonindicted 4

1. Article applicable to criminal facts;

Article 347(1) of the Criminal Act

1. To sentence imprisonment with prison labor by taking into account the fact that damage has not been completely recovered until now;

1. Facts charged;

On February 15, 2007, the Defendant: (a) purchased 970 square meters from the victim non-indicted 1 (hereinafter referred to as the “forest of this case”) from the victim non-indicted 1 in the △ consulting office operated by the Defendant in Busan Shipping Daegu (hereinafter referred to as the “Segu”); and (b) paid a down payment of KRW 146 million,00,000 from the purchase price; and (c) registered the ownership of the Defendant immediately; (d) the balance shall be paid within 15 days upon receipt of the change of form and quality and the construction permit under the responsibility of the victim, and (e) the said forest shall be loaned to the bank as security and shall be paid at the same time, and

On February 16, 2007, the Defendant paid the victim the down payment of KRW 30 million to the Defendant, and received a building permit as a result of the registration of ownership transfer of the said forest land in the future, the Defendant received the said forest land loan as security, and paid the balance to the victim, or if he did not obtain the building permit, there was a duty to preserve the ownership of the said forest land so that the owner may recover the ownership of the said forest land to

On the same day, the Defendant, in violation of the aforementioned duties, set up the right to collateral security of KRW 70 million with the maximum debt amount, and on March 5, 2007, set up the right to collateral security of KRW 270 million with the maximum debt amount to Nonindicted 3 and two other persons on March 5, 2007, thereby gaining pecuniary benefits equivalent to KRW 270 million with the maximum debt amount, and sustained damages equivalent to the same amount

2. Determination:

Since the crime of breach of trust is established by a person who administers another’s business by acquiring, or having a third party obtain, pecuniary benefits by violating one’s duty, the subject of the crime of breach of trust shall be the person who administers another’s business, and the person who administers one’s business shall not be the subject of the crime of breach of trust.

Therefore, in the case of this case, the public prosecutor, when the defendant's duty to pay the balance of the purchase and sale to the non-indicted 1 or when the future sales contract is terminated, identified the duty to restore the real estate of this case to the non-indicted 1 as another person's business and prosecuted

However, in a real estate sales contract, since the obligation of the buyer to pay the remaining purchase and sale price is not the seller's business but the buyer's own business, even if the defendant delayed the obligation to pay the remaining purchase and sale price, the defendant cannot be deemed to have completed another person's business.

In addition, with regard to the duty to restore the forest of this case, the obligation to change the form and quality of the forest of this case and to obtain a building permit is imposed on Nonindicted Party 1. The obligation of Nonindicted Party 1 is the obligation to pay the remainder before the Defendant pays the purchase and sale price. If Nonindicted Party 1 breached the obligation to obtain a change in the form and quality of the forest of this case and a building permit, the Defendant may cancel the sales contract on the ground of Nonindicted Party 1’s default, and demand Nonindicted Party 1 to pay the down payment amount of KRW 30 million and the compensation amount of KRW 30 million already paid against Nonindicted Party 1 (Article 5 and Article 6 of the evidence record). The Defendant did not cancel the sales contract until now (Article 10 of the real estate sales contract of this case). Meanwhile, Nonindicted Party 1 cannot cancel the sales contract in principle as long as the Defendant did not perform his prior performance obligation. However, it is recognized that the sales contract can not be cancelled prior to the payment of the remainder of the contract.

Ultimately, the real estate sales contract for the instant forest is maintained as it is without being rescinded, and in such a situation where the duty of restoration is not specifically created because the real estate sales contract was not rescinded, it is difficult to view that there is a legal, contractual, or good faith duty to fully preserve the ownership of the real estate purchased by the purchaser and completed the registration in preparation for a contract termination situation that may occur in the future.

Furthermore, according to the records of this case, it is recognized that the defendant received the registration of transfer of ownership on the forest of this case from the non-indicted 1 while paying the down payment only with the non-indicted 1, and then agreed to pay the balance from the loan by providing the forest of this case as a security to the bank right. As such, since the defendant had already reached an agreement with the non-indicted 1 after completing the registration of transfer of ownership, lending of money by offering the forest of this case as security after offering the forest of this case was already agreed in advance with the non-indicted 1, it is difficult to deem that the defendant violated the agreement even if he borrowed money from the non-indicted 2, 3, etc. as stated in the facts charged, and it is reasonable for the defendant to pay the balance with the non-indicted 1 due to the money borrowed from the non-indicted 2, 3, etc., but this is nothing more than a delay in the buyer's obligation to pay the balance, and it cannot be viewed as business for others

3. Conclusion

Thus, the above facts charged constitute a case where there is no proof of crime or lack of evidence, and thus, the defendant is acquitted under the latter part of Article 325

Judges Lee Jae-soo