[1] Requirements for recognizing a beneficiary who gains a benefit from the execution of an occupational breach of trust and a third party closely related thereto as a co-principal of an occupational breach of trust

[2] In a case where the second purchaser, who had been unaware of the double selling at the time of the purchase in relation to the purchase of the purchase right, was aware of such fact and subsequently won a favorable judgment and completed the registration of transfer of the ownership of the sale right, the case denying the establishment of a joint principal offense in breach of trust

[1] In order to recognize a beneficiary who benefits from the execution of a crime of occupational breach of trust or a third party closely related thereto as a co-principal against the perpetrator of the crime of occupational breach of trust, the act of the perpetrator of the crime of occupational breach of trust should have been recognized. Furthermore, it is necessary to actively participate in the act of breach of trust by inducing the perpetrator of the crime of breach of trust or participating in the whole process of the act of breach of trust.

[2] In a case where a second purchaser was unaware of the double selling at the time of purchase with regard to a sales contract for the right to purchase, but the second purchaser was aware of such fact and subsequently filed a lawsuit against the seller, and subsequently he was awarded a favorable judgment and completed the registration of transfer of ownership, the case affirming the establishment of a joint principal offense of breach of trust on the grounds that it does not constitute a case where the second purchaser’s exercise of civil rights constitutes a case where the second purchaser actively participated in the act of breach of trust, such as inducing the seller to commit the seller’s breach of trust

[1] Articles 30 and 356 of the Criminal Act / [2] Articles 30 and 356 of the Criminal Act

[1] Supreme Court Decision 99Do1911 delivered on July 23, 1999 (Gong1999Ha, 1832) Supreme Court Decision 2003Do4382 Delivered on October 30, 2003 (Gong2003Ha, 2384) Supreme Court Decision 2008Do287 Delivered on July 24, 2008

Defendant

Defendant

Law Firm Kcel et al.

Incheon District Court Decision 2009No599 Decided June 5, 2009

The part of the judgment of the court below against the defendant is reversed and that part of the case is remanded to the Incheon District Court Panel Division.

We examine the grounds of appeal.

After recognizing the facts as stated in its reasoning based on the adopted evidence, the court below acknowledged the facts and records. In other words, the defendant opened the above co-defendant 2's right to purchase non-indicted 3's daily life plan (hereinafter "the right to purchase") from the above co-defendant 5, and held that the defendant's non-indicted 2's non-indicted 6's non-indicted 8's non-indicted 2's non-indicted 6's non-indicted 6's non-indicted 8's non-indicted 6's non-indicted 6's non-indicted 8's non-indicted 6's non-indicted 2's non-indicted 6's non-indicted 6's non-indicted 2's non-indicted 7's non-indicted 6's non-indicted 6's non-indicted 2's non-indicted 7's non-indicted 2's non-indicted 6's non-indicted 2's non-indicted 6's non-indicted 7's non-indicted 8's non-indicted 26's non-indicted 26's non-indicted

However, such determination by the court below is difficult to accept for the following reasons.

In order to recognize a beneficiary who benefits from the execution of an occupational breach of trust or a third party closely related thereto as a co-principal against the perpetrator of the occupational breach of trust, first of all, the perpetrator’s act should have been aware that it constitutes an act of breach of trust against the victim himself/herself. Furthermore, it is necessary to actively participate in the act of breach of trust by inducing the perpetrator of the occupational breach of trust or participating in the entire process of the act of breach of trust (see Supreme Court Decision 2003Do4382, Oct. 30, 2003, etc.).

According to the facts and records acknowledged by the court below, as seen above, the defendant did not know that the sales contract constitutes double selling at the time when the defendant purchased the sale right of this case from the co-defendant. The defendant was aware of double selling and received the return of the purchase price already paid from the co-defendant, but it was not refunded KRW 82 million, and the defendant and the non-indicted did not bring a lawsuit against the non-indicted, a voluntary conciliation was made between the co-defendant who filed a lawsuit against the defendant and the non-indicted, and based on this, the court below made a lawsuit against Incheon Metropolitan City and made the registration of transfer of ownership of this case through a lawsuit against the non-indicted, and in light of the above legal principles, in the process of voluntary conciliation during the civil litigation brought by the defendant against the non-indicted to realize his civil rights at the time of the purchase of the ownership right of this case, it is difficult to view that the defendant's contact with the non-indicted as recognized by the court below and the co-defendant of the court below's co-defendant's cooperation with the defendant.

Nevertheless, the court below determined that the act of co-defendant's breach of trust constitutes a co-principal of the court below's joint principal offense on the ground that it is reasonable to view that the defendant in this case was actively involved in the act of breach of trust beyond the ordinary social acceptable range. The court below erred by misapprehending the legal principles on joint principal offense of breach of trust, thereby affecting the conclusion of the judgment. The ground of appeal pointing this out

Therefore, without further proceeding to decide on the remaining grounds of appeal, the part of the judgment below against the defendant is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Ahn Dai-hee (Presiding Justice)