The case holding that a crime of breach of trust shall be established against a factory mortgagee, in case where the transferee of a public machine with a factory mortgage established by the Factory Mortgage Act, while taking over the secured debt to a financial institution, disposes of the object to a third party at his discretion.

The case holding that since the transferee of factory machinery, for which the factory mortgage was created by the Factory Mortgage Act, while taking over the mortgaged debt to his financial institution, has a duty to preserve the object until the debt is repaid, if he voluntarily sold it to a third party in violation of his duty, the crime of breach of trust is established against the mortgagee.

Article 355(2) of the Criminal Act

Defendant

Defendant and Prosecutor

Changwon District Court Decision 2002No446 delivered on December 10, 2002

Each appeal shall be dismissed.

1. Judgment on the prosecutor's appeal

In light of the records, the court below's decision of the court of first instance which found the defendant guilty of the fraud of the factory building, etc. of this case is reversed for the reasons stated in its holding, and the decision of not guilty of this part of the facts charged is just and acceptable, and there is no error of law by misapprehending the legal principles on fraud or by mismisunderstanding the facts against the rules of evidence.

2. Judgment on the defendant's appeal

In addition, according to the evidence examined and adopted by the first instance court in light of the records, the court below found that the defendant, in collusion with the co-defendant of the first instance court, could cause damage to the Korea Development Bank, which is a security interest in the machinery of this case by disposing of the machinery of this case at will, and thus, the defendant conspired with the co-defendant of the first instance court to pay for the loan obligation as stated in its reasoning, and accepted 13 machinery, the maximum debt amount of which was set up to the Korea Development Bank with the factory of this case under the Factory Mortgage Act of July 14, 1995, which had been set up a mortgage right of 500 million won with the maximum debt amount of the loan amount of which was set up to the Korea Development Bank under the Factory Mortgage Act, the defendant violated his duty to preserve the object until the payment of the loan was made, and it did not err in the misapprehension of the legal principles as to the above money of 12.316,100,000 won and the above market value of the machinery of this case at issue.

3. Therefore, each appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Yoon Jae-chul (Presiding Justice)