2017No1159, 2019No467 (Joint) Fraud, Breach of Trust

2019 initially 245 Application for a compensation order

A South 73. Symar

Prosecutor and Defendant

Yellow Hak-Jak, Shok-Jak, Kim Mak-Jak (Courtrooms) and Kim Jong-Jak (Courtrooms)

Attorney* (Korean National Assembly)

A person shall be appointed.

Attorney Lee Do-young

1. Ulsan District Court Decision 2016Gohap754, 2200 (Joint Judgment) Decided September 7, 2017

2. Ulsan District Court Decision 2019Gohap1024 Decided April 23, 2019

September 6, 2019

The judgment of the court below is reversed.

A defendant shall be punished by imprisonment for not less than one year and six months.

The Defendant’s appeal against the judgment of the second instance is dismissed.

The defendant pays KRW 110,00,000 to an applicant for compensation.

The above compensation order may be provisionally executed.

1. Summary of the grounds for appeal;

A. Public prosecutor (as to the judgment of the court of first instance)

1) As to the breach of trust in the judgment of the court below of first instance, the Defendant received the down payment and intermediate payment of the 2016 Highest200 case’s real estate as the victim and received the payment of the down payment and intermediate payment to the victim, but in violation of the above duties, the Defendant was in a position to manage another’s business, and the Defendant was in a position to obtain a loan of KRW 180 million as security, and thus, established a collateral security. Thus, the Defendant was in a position to manage another’s business. Thus, the judgment of the court below that acquitted the Defendant of the crime of breach of trust is erroneous in matters

2) The punishment sentenced by the court of first instance (one year of imprisonment) is too unhued and unfair.

B. Defendant (Defendant 2’s judgment of the court below)

The punishment sentenced by the second instance court (one year and six months of imprisonment) is too unreasonable.

2. Determination on the appeal as to the judgment of the court of first instance (as to the assertion of mistake of facts or misapprehension of legal principles as to the violation of trust in the case of 2016 high-ranking200 among the judgment of the court of first instance)

A. Summary of the facts charged in breach of trust in the judgment of the court of first instance

On September 14, 2012, the Defendant, the owner of the building in Ulsan-gu ○○○○-ro 106 around September 14, 201, concluded a sales contract with the victim B at the sales office of the building site of the building site of the building site of the "(i) loan* The sales contract of the subparagraph *.

The Defendant and the victim agreed to pay the down payment of KRW 2,3 million on the date of the contract, KRW 5,00,000 on September 24, 2012, KRW 5,000,000 for the first intermediate payment of KRW 5,000 on October 26, 2012, KRW 5,000 for the second intermediate payment of KRW 5,00,000 on December 4, 2012, KRW 40,000 for the remainder after completion, and immediately deliver documents, etc. necessary for the registration of transfer of ownership to the victim.

피고인은 위 약정에 따라 피해자로부터 계약금과 중도금 합계 1억 7 , 300만 원을 피 고인의 처 C명의의 농협 예금계좌 ( 계좌번호 : 302 - XXXX - Xxxx - xx ) 로 건네받았으므로 , 잔금기일에 피해자로부터 잔금을 수령함과 동시에 피해자에게 위 빌라에 대한 소유권 이전등기절차를 이행하여 주어야 할 임무가 발생하였다 .

Nevertheless, on March 29, 2013, the Defendant violated the above duties and completed the registration of preservation of ownership with respect to the Defendant’s wife C ** on March 29, 2013. On the same day, the Defendant obtained a loan to the Mapo Saemaul Bank, making the registration of establishment of a collateral of KRW 180 million with respect to the loan of KRW 100 million with the maximum debt amount.

Accordingly, the Defendant acquired economic benefits equivalent to the maximum maximum debt amount of the right to collateral security established on the said real estate, and inflicted damages equivalent to the same amount on the victim.

B. The judgment of the court below

The lower court determined that the Defendants did not constitute a crime of breach of trust against the Defendant, on the grounds that, although the Defendant entered into a real estate sales contract with the victim and received the intermediate payment from the victim, it is difficult to view that the real estate seller who received the intermediate payment constitutes a person who administers the buyer’s business.

C. Judgment of the court below

1) The crime of breach of trust is established when a person who administers another’s business obtains pecuniary advantage or has a third party obtain such benefit through an act in violation of one’s duty and thereby causes damage to the principal. Here, “a person who administers another’s business” refers to a person who executes another’s business on the basis of a fiduciary relationship between the two parties and acts on behalf of another’s business or cooperates in preserving another’s property (Supreme Court Decision 2003Do7645 Decided June 17, 2004).

The binding force of a contract may be freely relieved of either party or a down payment at the stage of paying the down payment only at the real estate sales contract. However, when the contract is fully implemented in full due to the payment of the down payment, etc., the seller may not be exempted from the duty to transfer the ownership of the real estate to the buyer unless the contract has been revoked. Therefore, when the contract reaches such a stage, the seller is in a new relationship of protecting and managing the buyer’s pecuniary interests in cooperation with the buyer in preserving the buyer’s property. From that time, the seller is deemed to fall under “a person who administers another’s business” as referred to in the crime of breach of trust. Accordingly, the seller disposes of the real estate to a third party before transferring the ownership of the real estate to the buyer according to the terms and conditions of the contract, and completed the registration following the disposal to a third party. This is an act of undermining the buyer’s acquisition or preservation of the real estate, which constitutes a crime of breach of trust (see Supreme Court en banc Decision 2017Do427, May 17, 2017).

2) The lower court acknowledged the following circumstances based on the evidence duly adopted and investigated, namely, ① the Defendant, at around September 14, 2012, entered into a contract for sale in lots with the victim B ○○○○○○○. ② The victim paid the Defendant the down payment amount of KRW 23 million on the date of the said contract, ② the Defendant paid the remainder payment to the Defendant at the time of the said contract, but the Defendant offered the payment of the intermediate payment of KRW 150 million at the time of the said contract, which was KRW 4.85 million to the Defendant at his own discretion, and accordingly, the Defendant offered the above 10 million share transfer registration for the part payment of KRW 30 million at the time of the said contract, and the Defendant offered the above 30 million share transfer registration for the part payment of KRW 100 million at the time of the intermediate payment to the Defendant.

3. The judgment of the court below on the appeal as to the second instance judgment

On the other hand, the facts that the defendant recognized the crime of this case are favorable to the defendant. However, while the defendant committed the crime of this case in the absence of the record of punishment for the same crime of fraud, the defendant committed the crime of this case in the absence of the records of punishment for the same crime of fraud, and the amount of damage is considerable, and even if the damage is not recovered, the defendant's economic situation, age, character and behavior, environment, circumstances after the crime, and whether the circumstances after the decision of the court below changed after the decision of the court below are considered to be reasonable and appropriate, and it cannot be said that the defendant's argument is unfair. Therefore, the defendant's argument is without merit.

4. Conclusion

Therefore, the prosecutor’s appeal against the acquittal portion of the judgment of the court of first instance is with merit, and thus, the part of the judgment of the court of first instance reversed pursuant to Article 364(6) of the Criminal Procedure Act without examining the prosecutor’s allegation of unfair sentencing. The aforementioned reversed part and each offense against the guilty part of the judgment of the court of first instance among the judgment of the court of first instance are concurrent crimes under the former part of Article 37 of the Criminal Act. Therefore, one sentence is imposed on the defendant. Therefore, the part of the judgment of first instance in the judgment of the court of first instance should also be reversed. Therefore, the judgment of the court of first instance should be reversed with the prosecutor’s appeal and the first judgment of the court of first instance shall be reversed, and the defendant’s appeal against the judgment of the court of second instance shall be accepted, and the defendant’s appeal against the court of second instance shall be dismissed without merit, and it is so decided as per Disposition by the assent of all participating Justices.

【Re-written Judgment of the first instance court】

Criminal facts and summary of evidence

Since the part concerning the fraud among the facts constituting the crime recognized by this court is identical to the corresponding column of the judgment of the court of first instance among the facts constituting the crime recognized by this court, the part concerning criminal records, the 2016 Highest 754 and the 2200 Highest 200, the part concerning fraud is identical to the corresponding column of the judgment of the court of first instance, this refers to the same as is in accordance with Article 369 of the Criminal Procedure Act.

The facts constituting the crime are as stated in Paragraph 2(a) of the judgment of the court of first instance. The summary of the evidence recognized by the court of first instance is as stated in the corresponding column of the judgment of the court of first instance, except for adding 1. C's protocol of interrogation of the police officer in relation to C', and ' protocol of interrogation of the suspect in relation to the defendant in relation to the prosecutor's office, 'the protocol of interrogation of the suspect in relation to the defendant' as stated in the corresponding column of the judgment of the court of first instance. Thus,

Application of Statutes

1. Relevant Article of the Criminal Act and the selection of punishment for the crime;

Article 347(1) of each Criminal Code (the point of fraud), Article 355(2) and (1) of the Criminal Code (the point of breach of trust) and each imprisonment.

Determination of punishment

1. Handling concurrent crimes;

The latter part of Article 37 and Article 39(1) of the Criminal Act

1. Aggravation for concurrent crimes;

Article 37 (former part of Article 37, Article 38 (1) 2, and Article 50 (Crimes)

1. Aggravation of concurrent crimes with respect to the penalty prescribed in fraud

1. Declaration of compensation order and provisional execution;

Articles 25(1), 31(1), (2), and (3) of the Act on Special Cases concerning the Promotion, etc. of Legal Proceedings

Reasons for sentencing

It is recognized that the above victim does not want the punishment of the defendant by mutual consent with the victim of the case 2016 high-end754. Each of the crimes of this case is concurrent crimes with the crime of fraud for which judgment has become final and conclusive, and it is not possible to consider equity in cases where a judgment is to be declared simultaneously in accordance with Article 39(1) of the Criminal Act.

On the other hand, however, although the defendant deceivings victims to take advantage of property profits, and received money by using the real estate as security despite the obligation to transfer the right of retention of real estate, it is not good that the defendant used the real estate to obtain money, and the amount of damage is considerable, a long time has passed since the crime was committed, but the above victim was punished because he did not agree with the victim of the 2016 large group 2200 cases, and other factors such as the defendant's age, character, character and behavior, family environment, motive and circumstance of the crime, means and consequence of the crime, circumstances before and after the crime was committed, and whether the situation was changed after the sentence of the court below, etc. shall be determined as the sentence as stated in the order.

Judges Kim Jong-gu

Judges Kim Jong-sung

Judge Lee Il-il

1) In this case, the judgment of the first instance and the judgment of the second instance were consolidated in the appellate court, but a final judgment is rendered in the middle of the judgment of the first and second instance.

As a single sentence cannot be imposed, the reasons for appeal shall be determined by each judgment of the court below.