A. In double selling of real estate, where the seller performs the duty of transfer of ownership to the prior buyer, whether the seller has committed a crime of breach of trust against the buyer (negative)

B. In the double selling of real estate, whether the seller is obligated to transfer ownership to the prior buyer in a case where the sales contract to the prior buyer constitutes a crime of fraud (affirmative with qualification)

A. In the case of double selling of real estate, the seller performed his duty of transfer of ownership to the prior buyer, and it cannot be deemed that the seller breached his duty in relation to the buyer.

B. In double selling of real estate, even where the sales contract for the buyer’s prior buyer constitutes a crime of fraud against the buyer due to special circumstances, there is no seller’s obligation to transfer ownership to the prior buyer as long as the grounds for invalidation or revocation of the sales contract exist or is not revoked.

Article 355(2) of the Criminal Act

A. Supreme Court Decision 77Do1116 delivered on October 11, 197 (Gong1977, 10343) 86Do112 delivered on December 9, 1986 (Gong1987, 180)

A

A co-inspector;

Cheongju District Court Decision 92No128 delivered on April 23, 1992

The appeal is dismissed.

As to the Prosecutor’s Grounds of Appeal

The summary of the facts charged of this case is as follows: the defendant sold the real estate of this case to the non-indicted 5.3 million won on May 29, 191 and received the down payment and intermediate payment; on June 27, 191, he was found to have received the down payment by selling the above real estate to the non-indicted Da in double amount of KRW 15.3 million on June 29 of the same year, and he received the down payment from the above B on June 29 of the same year, and as a result, he discussed this problem in the presence of the interested parties, such as the defendant, B, and C, from July of the same year, he paid 7 of the same year a sum of KRW 7 million including damages, and then the contract was concluded at a settlement on the completion of the registration of ownership transfer to the above Eul, and the defendant did not receive the above amount of KRW 7.7 million on July 29, 197, and did not receive any balance from the above C, and the court below found the above defendant not guilty of the above property profits.

In the case of double sale of real estate, it cannot be deemed that the seller breached his duty of transfer of ownership to the prior buyer and then breached his duty in relation to the buyer (see Supreme Court Decision 77Do116 delivered on October 11, 197; 86Do112 delivered on December 9, 1986; 86Do112 delivered on December 9, 1986);

In double selling of real estate, even in cases where the sales contract for the prior buyer constitutes fraud against the prior buyer due to special circumstances, there is no seller’s duty to transfer ownership to the prior buyer, unless the grounds for invalidation or cancellation exist or the seller’s duty to transfer ownership is not extinguished. In such a case, the lawsuit cannot be concluded or adopted after the seller took procedures for transfer of ownership to the prior buyer on the premise that the seller did not have the seller’s duty to transfer ownership to the prior buyer. Therefore, the judgment of the court below is justified and there is no misapprehension of the legal principle of breach of trust, such as the theory of lawsuit.

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

Justices Yoon Young-young (Presiding Justice) Park Young-dong Kim Jong-ho