(영문) 대법원 2020.6.18.선고 2019도14340 판결

A. The crime of breach of trust is established when a person who administers another’s business obtains pecuniary advantage or causes damage to another person who is the subject of the business by having a third party acquire it through an act in violation of his/her duty. Thus, the subject of the crime must be in the position of administering another’s business. In order to be “a person who administers another’s business” at this time, the subject of the crime must be in the position of administering another’s business, such as the case where a person executes all or part of the business concerning the management of another’s property on behalf of another person, such as the case where a person administers all or part of the business concerning the management of another’s property on behalf of another person, must be in the position of protecting or managing another person’s property on the basis of a trust relationship between the parties exceeding the relationship of conflict of interest under this ordinary contract (see, e.g., Supreme Court en banc Decision 2008Do10479, Jan. 20, 2011; Supreme Court

Under an ordinary contractual relationship in conflict of interest, a person who is in a relationship between the other party and the other party obtains the benefit of satisfaction of rights under a contract or realization of claims through the performance of the debtor's faithful performance of performance of obligations, or who is an incidental obligation to protect or take account of the other party in the performance of a contract cannot be deemed a person who administers another person's business (see, e.g., Supreme Court Decision 2015Do1301, Mar. 26, 2015) and a person who administers another person's business with certain authority, such as a typical and essential performance of a contract, such as delegation, should be deemed a person who administers another person's business (see, e.g., Supreme Court en banc Decision 2019Do9756, Feb. 20, 202).

B. Even though a debtor assumes the obligation to establish a mortgage on the real estate owned by him/her according to a mortgage agreement for securing a pecuniary obligation, it cannot be deemed that the debtor, on the ground that he/she goes beyond an interest-based relationship under an ordinary contract, and entrusts the creditor with the affairs of the creditor, on the basis of a fiduciary relationship with the creditor.

A debtor’s obligation to establish a mortgage on a creditor according to a contract is the debtor’s own obligation that is to be borne by the debtor according to the contract. Since the debtor’s performance of such obligation is merely a debtor’s own business, it cannot be said that the debtor’s business is “a person who performs another’s business” in relation to the creditor. Therefore, even if the debtor’s performance, first of all, reduces or loses the value of the security by creating a mortgage on a security or transferring a security to a third party, thereby causing danger to the creditor’s creditor’s claim realization, the crime of breach of trust may not be established. The foregoing legal principle applies to the case where the debtor executes a contract for establishment of a security for transfer of security on a security on a monetary obligation and disposes of the real estate to a third party even though he/she

D. In contrast, Supreme Court Decisions 2007Do19328 Decided March 27, 2008 and Supreme Court Decisions 201Do11224 Decided November 10, 201, which held that the crime of breach of trust is established where an obligor, who agreed to set up a right to collateral security on real estate for debt security, falls under a person who administers the creditor’s business on the premise that the obligor’s business constitutes a person who administers the creditor’s business, shall be modified to the extent inconsistent with this Opinion.

On the other hand, Supreme Court en banc Decision 2017Do4027 Decided May 17, 2018 recognized the establishment of the crime of breach of trust in the case of double selling of real estate. The above decision has a large weight of real estate in the economic life of the people. The real estate sale price is divided into a down payment, an intermediate payment, and an balance, and the buyer pays the down payment and an intermediate payment which accounts for a significant portion of the sale price to the seller. Even if the seller does not have sufficient means to prevent double selling of real estate, it has maintained the previous view that the crime of breach of trust is established in the case of double selling of real estate by taking into account the special characteristics of the transaction reality where the seller does not have any adequate means to prevent double selling of real estate. In light of this, the above decision’

2. The judgment of the court below

A. The lower court found the Defendant guilty on the facts charged of the instant case that: (a) the Defendant, while borrowing KRW 1.8 billion from the victim, agreed to set the fourth priority collective security right to the instant apartment; (b) the third party set up a fourth priority collective security right with the maximum debt amount of KRW 1.2 billion, thereby obtaining property benefits equivalent to KRW 1.2 billion and causing damages equivalent to the same amount to the victim, even though the Defendant agreed to set the fourth priority collective security right

B. However, in light of the aforementioned legal principles, in the instant mortgage contract, insofar as the typical and fundamental contents of the relationship between the Defendant and the victim in the instant case are repayment of the obligation and security for it, and as long as it cannot be deemed that Defendant (a person in charge of another’s business in relation to the victim), based on the fiduciary relationship with the victim beyond the relationship with the victim in ordinary contracts, cannot be deemed to be a person in charge of the victim’s business. Nevertheless, the lower court convicted the Defendant of the facts charged in the instant case on the premise that it falls under this case. In so doing, the lower court erred by misapprehending the legal doctrine on the meaning of “a person in charge of another’s business in relation to breach of trust.” The grounds for appeal assigning this error are with merit.

3. Conclusion

Therefore, without further proceeding to decide on the remaining grounds of appeal, the judgment of the court below is reversed, and the case is remanded to the court below for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating judges except for a dissenting opinion by Justice Kim Jae-sik, Justice Min You-sook, Justice Min You-sook, Justice Kim Ri-soo, and Justice Lee Dong-won, and a concurrence with the Majority by Justice Kwon Soon-il, Justice Ahn Jae-chul, and Justice Noh Jeong-tae, and a concurrence with the Dissenting Opinion by Justice Kim Jae-hyung

4. Dissenting Opinion by Justice Kim Jae-hyung, Justice Min You-sook, Justice Kim Ri-soo, and Justice Lee Dong-won

A. The key issue of this case is whether a crime of breach of trust is established in cases where an obligor borrowed money from a creditor to establish a mortgage on the real estate and received the loan money from a creditor and established a mortgage on a third party before the creditor establishes a mortgage (the subject property is the subject property, and the time of disposal is limited to the time before the mortgage is established after the loan money is received. It is actually limited to the establishment of a mortgage right, or the mortgage here is the same as the majority opinion. This issue can be seen as an issue of interpretation of penal provisions abstractly, but since this specific issue is specific, such as the property subject to inclusion, the time of the crime, and the form of act, it is not just one resolution theory from the principle of no punishment without law, which is the large principle. This is true if the majority opinion of the Supreme Court en banc Decision 2017Do4027 Decided May 17, 2018 affirmed the establishment of a crime of breach of trust against the creditor, and criticizes that it is against the principle of no punishment without law, even if the debtor did not establish a mortgage on the creditor.

However, in a case where a debtor assumes a debt, such as borrowing money from a creditor, and entered into a mortgage contract for the purpose of securing the debt, the obligation to establish a mortgage shall be in accordance with the terms and conditions of the contract, and at the same time constitutes a business of the other party, which constitutes a business of the other party, and thus constitutes a business of the other party. The majority opinion does not agree with the Supreme Court precedents, which held that where the debtor has a duty to cooperate in preserving the other party’s property in order to protect the trust relationship arising from the transactional relationship, it constitutes a business of the other party, which is the subject of the breach of trust, and that the trust relationship based on the security contract can be a legal interest to be protected by the breach of trust.

B. The essence of the crime of breach of trust lies in causing property damage to another person by committing a violation that undermines the trust of another person based on a fiduciary relationship. Such a violation includes any act that does not perform an act that is naturally expected under the provisions of law, the content of a contract, or the good faith principle, or is anticipated not to perform an act that is naturally expected under the provisions of the law, the content of a contract, or the good faith principle, or that such an act is anticipated not to perform an act.

이와 같이 배임죄의 행위 태양은 다양한 형태로 발현될 수 있으나, 거래관계에서 발생 하는 모든 신뢰 위반행위를 배임죄로 처벌할 수 는 없으므로 형벌법규의 해석을 통하여 일정한 범위 로 가벌 적 배임 행위를 제한 하는 것은 어느정도불가피하고 또 필요하다고 볼 수 있다. 그러나 그렇다고 하더라도 이러한 제한적 해석에 지나치게 치우치거나 맹목적 으로 이끌린 나머지, 배임죄의 처벌 범위를 과도하게 축소함으로써 형사법 에 의하여 마땅히 보호되어야 할 개인의 재산권이나 신임관계마저도 그 보호범위에서 제 외 시켜 형벌 법규 로서의 배임죄가 그 본연의 기능을 다하지 못하는 법률상 공백상태 를 야기 해서는 곤란 하다. 이는 부동산 이중매매와 같은 배신행위에 대하여는 형벌법규의 개입이 정당하다는 공감대 가 사회적 으로광범위하게 존재할 뿐 아니라, 거래 상대방의 재산보전에 협력 하여야 할 의무 가 있는사람이 고의로 그 임무를 위반하여 상대방에게 회복하기 어려운 손해 를 입힌 경우 배임죄로 처벌받을 수 있다는 판례가 확립된 법원칙으로 자리매김하기 까지 의 과정 에 비추어 보더라도그러하다.다. 1 ) 종래 대법원은 타인의 재산관리에 관한 사무를 대행하는 경우 외에도 매매, 담보권 설정 등 거래를 완성하기 위한 자기의 사무인 동시에 상대방의 재산보전에 협력할 의무 의 이행 인 경우에도 일관하여 이를 배임죄에서 말하는 '타인의 사무'에 해당 한다고 보아 왔다 ( 대법원 1971. 11. 15. 선고 71도1544 판결, 대법원 1983. 10.11. 선고83 도 2057 판결 , 대법원 1997.6.24.선고 96도1218 판결 등 참조). 그 결과 대법원은, 오래전 부터 부동산이중매매 사건에서 매도인 이 중도금을 지급받은 이후에는 매수인 앞으로 소유권 이전 등기를 마칠 때까지 협력할 의무가 있으므로 목적부동산을 제3자 에게 이중 으로 양도 하면 배임죄가 성립한다고 일관되게 판결함으로써 그러한 판례를 확립 하여 왔다 ( 대법원1975. 12. 23. 선고 74도2215 판결, 대법원 2005. 10. 28. 선고 2005 도 5713 판결 등참조). 2 ) 대법원 2018. 5. 17.선고 2017 도4027 전원합의체 판결은 문제된 사무 처리가 오로지 타인 의 이익 을보호·관리하는 것만을 내용으로 할 필요는 없고 자신의 이익 을 도모 하는 성질 을 아울러 가지더라도타인을 위한 사무로서의 성질이 부수적·주변적인 의미 를 넘어서 중요한 내용을 이루는 경우에는 '타인의 사무'에 해당한다는 법리를 재확인 하면서 , 부동산매매계약에서 중도금 지급 등 계약 이 본격적으로 이행되는 단계 에 이른 때 부터 매도인은 매수인의 재산보전에 협력하여 재산적 이익을 보호·관리할 신임 관계 에 있다고 보아 부동산 이중매매를 배임죄로 인정하는 종전 판례를 유지하였다. 3 ) 나아가 판례 는부동산에 관한 권리이전의 신뢰관계 및 그에 대한 보호 필요성은 매매 계약 뿐만 아니라부동산에 관한 권리의 이전·설정을 목적으로 하는 다른 법률관계 에서도 마찬가지로인정된다고 보아 배임죄의 성립을 긍정하여 왔다. 그리하여 근저당권 설정 계약 을 체결한 후 그에 따른 등기절차를 이행하기 전에 제3자에게 부동산 을 처분 하거나 근저당권설정등기를 하여 준 경우(대법원 2008. 3. 27. 선고 2007도9328 판결 , 대법원 2011.11. 10.선고 2011도11224 판결 등 참조),부동산에 대한 전세권 설정 계약 이나 양도 담보설정계약 후 그에 따른 등기절차를 이행하기 전에 제3자에게 근저당권 설정 등기 등 을하여 줌으로써 담보능력 감소의 위험을 발생시킨 경우(대법원 1993. 9. 28. 선고 93도2206 판결, 대법원 1997.6.24. 선고 96도1218 판결 등 참조) 등에 도 배임죄 의 성립을 인정하였다. 4 ) 그리고 대법원은채무 담보로 부동산에 관해 대물변제예약을 한 채무자에 대하여 타인 의 사무 를 처리하는 자가 아니라고 판시한 대법원2014.8.21. 선고 2014도3363 전원 합의체 판결 이후에도 최근까지 부동산 이중저당 사안에서 배임죄의 성립을 긍정하였다 ( 대법원 2019.1. 10. 선고 2018도15584 판결, 대법원 2019. 11.28. 선고 2019도 13730 판결 ). 또한부동산 이중매매에 관하여 배임죄 성립을 긍정한 위 대법원 2017도 4027 전원 합의체판결 선고 이후 대법원은 같은 법리에 따라 교환, 증여 및 대물 변제 약정 을 원인 으로소유권이전등기의무를 지고 있는 자 에 대하여 그 상대방의 재산보 전에 협력 하여 재산적 이익을 보호·관리할 신임관계에 있다는 이유로 배임죄 성립 을 긍정 하였다 ( 대법원 2018. 10.4. 선고 2016도11337 판결, 대법원 2018. 12. 13. 선고 2016 도 19308 판결 , 대법원 2019.4. 11. 선고 2016도1944 판결). 라. 이와 같은 판례의 태도에 비추어 볼 때, 이 사건과 같이 담보 목적으로 부동산 에 관한 근저당권 설정 계약을 체결한 후 그 부동산을 제3자에게 임의로 처분한 경우에는 지금 까지 의 대법원 판례에 따라 배임죄가 성립한다고 보아야 한다. 매매와 담보설정 행위 는 양자 모두 등기절차의 협력이라는 신임관계에 기초한 임무를 위반하였다는 공통성 을 지닐 뿐더러 , 다수의견과 같이 양자의 형사처벌을 달리 취급하는 것은 대법원 이그동안 재산 의 이중적 처분(매매, 근저당권설정, 전세권설정,면허권 등)에 관하여 일관하여 취해 온 태도 와양립하기도 어렵 기 때문이다.

As seen earlier, the Supreme Court en banc Decision 2017Do4027 Decided 2017 maintained the position that double seller of real estate constitutes a crime of breach of trust, which transfers ownership according to a sales contract.

The key point of this is that, rather than merely default on obligation, the seller intentionally reliances on the seller’s duty to cooperate in the buyer’s acquisition of real estate, and makes the buyer impossible to acquire ownership. Due to the characteristics of real estate transaction, the seller is in a position that may risk the buyer to not acquire his/her ownership, and thus constitutes a “person who administers another’s business,” who is the subject of the crime of breach of trust. In other words, transferring the right to the buyer’s registration of the seller to the same buyer is merely based on a strong trust relationship between the seller and the buyer formed in real estate transaction, not the non-performance of the transfer of ownership according to the contract of sale and purchase, and thus, the duty to cooperate in the performance of the contract of sale and registration may be assessed as a fiduciary relationship, such as the duty to cooperate in the performance of the contract of sale and purchase, and the status of the seller who is obligated to cooperate under such fiduciary relationship can be assessed as a person who administers the affairs related to the buyer’s acquisition of the right.

In light of the above, in a case where an obligor who entered into a mortgage agreement disposes of real estate to be provided as security to a third party, this does not differ from double selling of real estate in the context of the establishment of a crime of breach of trust. Rather, in the case of sale of real estate, a seller may assert the seller’s defense of simultaneous performance with respect to the buyer’s claim for the transfer of ownership over the remainder of the intermediate payment. However, in a case where an obligor, who was paid loan, entered into a mortgage agreement as security for pecuniary obligation, the obligor is bound to accept the registration of establishment of a mortgage without any such alteration or alteration, upon the obligee’s request for the registration of establishment of a mortgage. The latter is similar to a seller’s position of a real estate seller who received remaining balance of real estate, and thus, it is difficult to view that the obligor again disposes of the relevant real estate to a third party in the future as the subject of a crime of breach of trust is established if it is unreasonable to deem the obligor to have sold the real estate to a third party in the future.

Furthermore, considering the fact that the proportion of real estate in Korea’s economic life or the social and economic significance of the transaction for this purpose is still high, as in the instant case, the act of disposing of the real estate to a third party after entering into a mortgage by borrowing money from a debtor creditor as in the instant case cannot be readily concluded that the act of disposing of the real estate subject to a double selling of the real estate is less light than the case of double selling of the real estate. The debtor may choose a method of borrowing money equivalent to the market price by providing the real estate as a security to the method of selling the real estate in a substitute for the sale of the real estate owned by the debtor for the realization of the real estate. In this case, the amount is more than the sum of the down payment of down payment of down payment and intermediate payment determined ordinarily in the sale of the real estate. Nevertheless, in the case of double selling of the real estate, the double selling of the

Unlike the above Supreme Court en banc Decision 2014Do363 Decided June 2, 201, the Supreme Court did not recognize the establishment of the crime of breach of trust and change the precedent on the ground that even in exchange or donation, the duty to cooperate in preserving the other party’s property still becomes an essential substance of the relationship of trust, on the ground that the duty to cooperate in the preservation of the other party’s property becomes an essential substance of the relationship of trust even in exchange or donation on the ground that it is merely an obligor’s personal affairs, and that it is not irrelevant to the obligee’s claim preservation. Such purport is that the relationship between the transfer of the right to real estate and the trust of the obligee’s right to real estate as security, and the need to exchange the real estate with the other party’s right to the real estate, should not be seen to have been identical to the relationship between the other party’s trust and the need to exchange the real estate with the other party’s interest in the transfer of the right to the real estate and the need to protect the obligee’s trust.

E. Many opinions see that a mortgage contract only constitutes a "business of one's own" according to the agreement to implement procedures for the establishment of a mortgage in accordance with this mortgage contract, but is not a "business of another person". It seems that the mortgage contract is a contract attached to a contract for the creation of a secured claim and the typical and essential obligation of the parties even after the mortgage contract is satisfied, and thus, various obligations that the debtor owes before and after the mortgage creation are incidental to the monetary obligation. If a real estate is offered as security for a monetary obligation, the debtor bears each obligation for the repayment and the obligation for the maintenance of security, and the obligation for the maintenance of security is extinguished when the repayment is completed. Such a result is based on the nature of the collateral that only can be established on the premise that the secured claim can be established on the premise of the secured claim. Therefore, the security right should also be extinguished if the secured claim is extinguished without the establishment of the secured right.

However, in a case where the obligor’s obligation under a monetary consumption loan contract and the mortgager’s obligation under a security contract are strictly undertaken on the basis of another contract, and it is unreasonable to conclude that the secured mortgage has an influent nature as above with respect to the secured debt, and that it is not consistent with the standard for determining another’s business under the crime of breach of trust. In particular, the secured mortgage at issue in this case excludes the influent nature as to extinguished debt, and even if the secured debt is extinguished due to repayment, it does not affect the continuation of the secured mortgage (referring to Article 357(1)2 of the Civil Act). The Supreme Court en banc Decision 2014Do363 Decided the establishment of the crime of breach of trust in the case of the pre-sale for payment on behalf of real estate, supra, is established not only as a matter of course, but also as a matter of course, as a matter of course, by the obligee’s right to collateral ownership and an asset-backed security right, which is an asset-backed security right.

Today, the secured mortgage system functions as a means of finance for the consumption of the general public and as a system for the acquisition of this finance. As such, it is well known that the secured mortgage system goes beyond the traditional point of view to receiving monetary claims, and carries out an important role of mediating financial service providers to make a kind of investment by participating in the distribution of corporate profits through the form of interest, etc. It is true that the secured mortgage is transferred to other interest or created new rights such as the pledge upon the basis of the mortgage system, and this phenomenon is more complicated and more frequent than once as economic development has developed. Accordingly, in academic circles, there is a debate that the secured mortgage system that takes place in line with the actual circumstances should be mitigated in terms of the trust relationship between the secured claim and the secured mortgage contract, which is the object of the trust relationship of the debtor's own contract and the secured mortgage contract, should not be seen as maintaining the trust relationship between the secured claim and the secured obligation and the secured obligation of the creditor.

F. Meanwhile, the Supreme Court en banc Decision 2019Do9756 Decided February 20, 2020 regarding dual transfer of movable property was the key issue whether the obligation to maintain and keep the collateral of the person who created the security interest can be seen as the business of another person, such as the obligation to maintain and keep the collateral on movable property after the establishment of the transfer security right. On the other hand, the key issue of the instant case is whether the obligation to establish the mortgage, i.e.,, the obligation of the debtor to cooperate in the acquisition of the right by the creditor, can be the typical and essential content of

Therefore, the instant case should be evaluated differently from the above Supreme Court en banc Decision 2019Do9756 Decided the degree of binding force of the contract as to whether the obligation to cooperate in the preservation of property as to the acquisition of rights can be seen as another person’s business, transaction practice, type and content of the new relationship, and degree of violation of trust.

G. Many opinions concluded that the ultimate purpose of a mortgage agreement is to secure the performance of a monetary obligation, and that the debtor does not correspond to the "business of another person". This conclusion is that the debtor's obligation to implement the registration of establishment of a mortgage on real estate in accordance with a mortgage agreement is not a "business of another person". This is to completely change the previous position that the property right, which is a property right guaranteed by the Constitution, is strongly protected by the punishment, and to identify the exchange value of the property objectively and properly and to secure preferential control, so even if the essential contents of the security right are violated, the situation that does not focus on the essential contents of the security right to secure preferential control, which is to the extent that it is subject to criminal punishment. If so, a majority opinion is the highest court that must present the value and direction of our society, and it should be more fundamental and essential reasons for the debtor to make a decision different from the previous one, and it should not be referred to as the principle of no punishment without law as to the crime of breach of trust, which is an important issue in this case's answer.

H. Many opinions held that even if a debtor assumes the obligation to establish a mortgage to secure a pecuniary obligation, it cannot be deemed that a debtor entrusts a creditor with the affairs of a creditor based on a fiduciary relationship with a creditor beyond an ordinary profit-sharing relationship arising out of a mortgage contract. And the above legal doctrine applies to a case where a debtor executes a contract to establish a security for real estate as security for a monetary obligation and disposes of it to a third party even though he/she has the obligation to perform the procedure to transfer ownership to a creditor.

However, at the end of majority opinions, there is no difference in the fact that the debtor's obligation to make a mortgage on the creditor according to the mortgage contract and the " obligation to transfer the ownership to the seller according to the above Supreme Court en banc Decision 2017Do4027 Decided the sale and purchase contract" is only the form of the transfer of the right, but also the obligation to cooperate in the preservation of the creditor's property among the parties to the contract. Furthermore, in the case of the transfer of security, the obligation of the transferor of the security to transfer the ownership as in the case of the sale and purchase of real estate is "the obligation of the transferor of the security to transfer the ownership", and the majority opinion is contrary to the decision of the Supreme Court 2017Do4027 Decided the board

I. In conclusion, if an obligor, who entered into a mortgage agreement on real estate, disposes of the real estate to a third party and thereby makes it impossible or considerably difficult for the obligee to acquire the mortgage on real estate, such an act constitutes a breach of trust and constitutes a breach of intrinsic and typical fiduciary relationship arising out of a mortgage agreement and constitutes a breach of trust. Furthermore, deeming such as double selling of real estate, double chonsegwon, and license, accords logically with the established attitude of the precedents that recognized a breach of trust regarding double disposal of real estate, such as double selling of real estate, establishment of double chonsegwon, and license.

In light of the above legal principles, the judgment of the court below that the act of setting up a collateral to a third party with respect to the real estate to be provided as a collateral for the defendant who concluded a collateral contract in this case constitutes a crime of breach of trust is just and there is no error in the misapprehension of legal principles as to the meaning of "a person who conducts another's business" as stated in the crime of breach of trust.

For the foregoing reasons, we express our dissent from the Majority Opinion.

5. Opinion concurring with the Majority Opinion by Justice Kwon Soon-il, Justice Ansan-chul, and Justice Noh Jeong-tae, as to majority opinions

A. The opposing opinion is as follows: (a) as the nature of a fiduciary relationship in a real estate sales contract transfers the ownership of the real estate, the nature of a fiduciary relationship in a mortgage agreement concluded for the purpose of collateral security obtains the security value of the real estate to the creditor by providing it as a collateral; (b) thus, the double selling of the real estate and double mortgage should be treated in the context of whether the crime of breach of trust is established.

B. However, the dissenting opinion is inconsistent with the recent decisions of the Supreme Court that deny the establishment of the crime of breach of trust regarding the legal principle of strict interpretation of penal law and the intervention of state punishment on non-performance of obligations in accordance with the development of the legal system. Therefore, it is difficult to accept it as it is. 1) The interpretation of penal law should be strict, and it is unreasonable to interpret or analogically interpret the meaning of the language in the direction unfavorable to the defendant as contrary to the principle of no crime of no crime of no punishment without law and it is not permissible. Furthermore, regulating the meaning of penal law by means of civil law in the area of economic activity under which the principle of private autonomy is controlled by the principle of no crime of no punishment without law can bring an excessive intervention in the penal authority and infringe on the freedom of individuals, as well as to distort the legal principle of no crime of no crime of no crime of no crime of no crime of trust.

In the past, there are reasons for recognizing the establishment of the crime of breach of trust on the grounds of the duty to cooperate in the registration of double selling of this real estate. Unlike other property, real estate has a relatively large need to protect the parties to the transaction because its property value has increased, and there was a aspect that the legal concept remains in the process of changing the principle of intention into the current Civil Act under the current Civil Act. However, the concept that the right should be acquired only if it has been registered beyond half century since the Civil Act was enforced, the people have established a firm system among the people, and the civil system has established a variety of systems that can relieve the rights, and the property with a more important value than the real estate has become more. In addition, excessive intervention in the area of judicial jurisdiction has to interfere with the proper and efficient distribution of limited resources, and the subject of the crime of breach of trust has to be "a person who administers another's business", and therefore, it should not be recognized that another person's business should have been in violation of the duty to engage in another person's business.

In light of this, in order to see that one of the parties to the contract constitutes "a person who administers another's business", one of the parties to the contract shall not be limited to "a person who performs an obligation under the good faith principle that takes into account the protection of the other party's pecuniary advantage," but a fiduciary relationship that forms a typical and fundamental content of the other party's obligation to manage the right which is an object of the contract as the other party's property.

C) The Supreme Court denied the establishment of the crime of breach of trust on the ground that the seller of a movable property sales contract is not in the position of dealing with his/her business to the buyer, so even if he/she disposed of the subject matter to another person (Supreme Court en banc Decision 2008Do10479 Decided January 20, 201). Even if the debtor concluded a promise for payment in kind on the real property for the purpose of collateral and sold the subject matter to a third party at his/her discretion, even if the debtor disposed of the subject matter to the third party, the obligation to transfer the ownership of the real estate pursuant to the promise for payment in kind is not a business of the other party (Supreme Court Decision 2014Do3363 Decided August 21, 204). Moreover, even if the debtor arbitrarily disposed of the subject matter on the ground that the debtor’s obligation to maintain and preserve the value of the collateral cannot be deemed a business of the other party (Supreme Court en banc Decision 200Do2659, Feb. 27, 2019).

Supreme Court Decision 2015Do6057 Decided June 4, 2020 also denied the establishment of a crime of breach of trust on the grounds that it is difficult to deem the transferor to be in the position of dealing with another person's business in a double-conscepting case of shares before the issuance of share certificates. The Majority Opinion is faithful to the purport of such a series of precedents.

2) The Dissenting Opinion argues that the legal doctrine of the Supreme Court en banc Decision 2017Do4027 Decided May 17, 2018, which recognized the establishment of the crime of breach of trust with respect to double selling of real estate, ought to be applied, and that the majority opinion’s opinion contradicts the purport of the foregoing judgment. Furthermore, the Majority Opinion that evaluates the same differently is an interpretation that violates the principle of equality. However, the dual selling of real estate and double mortgage are different in various aspects, as seen below, and it is a real transaction situation where a real estate sales contract is made by dividing into down payment, intermediate payment, and balance, as the most of the general public goes through most of the people. In order to achieve a bluent with the preparation of a house, it is often deemed that the instant case’s transfer of ownership is intended to cover all the family’s assets with the funds for purchasing real estate, and is often appropriated for loans, loans, and loans, etc., which are insufficient to secure the need to raise new houses, and thus, it is still unreasonable when the transfer of ownership is paid at considerable intervals.

On the other hand, if a mortgage agreement does not contain a registration of establishment, it is an exception to the payment of money before the registration of establishment, and there are many cases where the buyer agreed to establish a mortgage to secure existing debts. Generally, in the case of real estate sale, the buyer is in an unstable position than the seller, but in the case of mortgage, the creditor is in a position that is superior to the debtor.

B) A mortgage creation agreement is an agreement setting up a mortgage on real estate for the purpose of security in preparation for the failure to perform the original monetary obligation, and is similar to double selling of real estate in that the seller who received intermediate payment in the case of double selling of real estate bears the obligation to complete the registration of a right to real estate. However, the seller who received intermediate payment in the case of double selling of real estate does not deviate from the seller’s obligation to transfer the ownership of real estate unless the contract is rescinded on the grounds of the buyer’s failure to perform the obligation to pay the price. In particular, the seller

It is the only way to escape from one's duty only to transfer ownership.

On the other hand, in the case of mortgage contract for securing the obligation, the obligor can at any time escape from the obligation to set up the mortgage on the creditor by repaying the obligation of his own borrowed money.

Although both are similar to the fact that they are obliged to complete the registration of rights to real estate, there is a big difference between the content of their obligations and the degree of binding force.

C) In the case of double sale of real estate, the social and economic utility, which is gained through criminal sanctions such as breach of trust, is to have the buyer transfer the ownership of a specific real estate to the buyer. In the case of the sale of real estate, the buyer becomes aware of the value of the real estate as a specific object and expected to obtain the ownership transfer, so even if he/she is paid monetary compensation after the fact, it is often impossible to achieve the purpose of the buyer’s transaction contract. In this regard, it is difficult to deny that there is a practical necessity to enforce the execution of the sale contract through the punishment of breach of trust, in addition to imposing civil liability on the seller who caused the impossibility of performance.

On the other hand, the social and economic utility of the case of mortgage contract for debt security is to secure the creditor's monetary claim.

The Supreme Court en banc Decision 200Do407 Decided December 1, 2008 ruled that the obligation to cooperate in the sale and purchase of real estate constitutes a breach of trust as well as an obligation to cooperate in the sale and purchase of real estate in accordance with the Majority Opinion, on the ground that the obligation to cooperate in the sale and purchase of real estate is not established on the ground that the obligation to cooperate in the sale and purchase of real estate is not established on the ground that the obligation to cooperate in the sale and purchase of real estate is not established on the ground that the obligation to cooperate in the sale and purchase of real estate is not established on the ground that the obligation to cooperate in the sale and purchase of real estate is not established on the ground that the obligation to cooperate in the sale and purchase of real estate is not established on the ground that the sale and purchase of the real estate is not a new type of obligation to cooperate in the sale and purchase of the real estate in accordance with the Majority Opinion.

As above, an important ground that cannot be seen as another person’s business is that the obligation to establish a mortgage to a creditor of an obligor who entered into a mortgage agreement cannot be the essential substance of a fiduciary relationship. In applying such a legal doctrine, there is no reason to keep any difference depending on whether the type of security is a mortgage contract, a promise for payment in kind, a security for transfer in security, or a security is a real estate or a movable property. Even if the type of security for a secured object or obligation differs from that of a security for a secured object or obligation, the ultimate purpose of each agreement and the primary obligation of the obligor accordingly are the same in that

C) The Supreme Court en banc Decision 2017Do4027 Decided double sale of real estate still criticizes the seller’s duty to cooperate in preserving the buyer’s property as another person’s business, and thus criticism that it is inconsistent with the Supreme Court en banc Decision on double sale of movable property, the promise to repay movable property, and double transfer of movable property, is unreasonable. However, it is only the method of securing the performance of a monetary obligation with the same security right. Ultimately, the legal relationship similar to the contract on the creation of mortgage at issue in the instant case is difficult to be deemed as the contract on the payment of movable property and the contract on the sale of movable property. Unless the foregoing Supreme Court en banc Decision is modified, the logic of the Dissenting Opinion does not have any logic.

In the specific form of providing real estate as security for mortgage, there are cases where a loan is made on the condition of providing a security, and where a loan is made on the condition of providing a security, it is difficult to view that there exists a transaction practice of lending money prior to the establishment of a security, and if a loan is not made on the condition of providing a security from the beginning without intent to provide a security, there is room to view that there is a crime of breach of trust, not a crime of breach of trust, but a crime of breach of trust, and a crime of fraud which is heavier than a statutory penalty. On the other hand, if a debtor did not provide a security, its substance is not different from that of a non-performance of a general public obligation. It is the legal term that the contract should be kept. The role of the court is not only to protect the parties asserting that the contract should be observed as stipulated in this contract, in response to the parties who want not to comply with the contract. If a creditor asserts that a contract should not be performed and a creditor claims the performance of the contract, the court may order the debtor to implement the contract.

The role of the court is to present. As above, the argument of majority opinions is supplemented. 6. Dissenting Opinion by Justice Kim Jae-hyung on the dissenting opinion is whether a real estate owner may be punished for a crime of breach of trust in the event that the real estate owner agreed to establish a right to collateral security in the future for the creditor and then establishes a right to collateral security to a third party. As to this issue, the Dissenting Opinion is supplemented from the perspective of interpretation of penal laws and regulations, and I would like to present my opinion on several issues raised in the concurrence with the Majority Opinion.

A. First, I supplement the Dissenting Opinion from the point of view of the interpretation of penal laws. (1) The penal laws and regulations should be strictly interpreted and applied, and they should not be excessively expanded or inferred interpretation in the direction unfavorable to the Defendant. However, the interpretation of penal laws and regulations is required to clarify the normative meaning so that it can be applied to specific facts, and it is necessary to interpret various methods of interpretation like other Acts.

First of all, it is necessary to interpret the meaning of the fishing gear or door used in the law to have a logical consistency by clarifying the possible language meaning of the fishing gear or door (a literal interpretation) and at the same time taking into account the relationship with other Acts (a logical interpretation). In a case where the language and text or logic of a penal provision cannot sufficiently grasp the meaning as a legal norm without exceeding the ordinary meaning of a penal provision, it is necessary to specify the meaning by comprehensively taking into account various factors, such as the overall principles of legal order, functions of a penal provision, legislative history, legislative intent and purpose, protection of the legal interest and protection of a penal provision, purpose of protection of a penal provision, form of an act, etc. (see Supreme Court en banc Decision 201Do2819, Feb. 21, 2002; Supreme Court en banc Decision 2002Do2363, Jan. 10, 2003; Supreme Court en banc Decision 2006Do5265, May 26, 2006).

In determining whether the crime of breach of trust is established, the person who deals with another's business should start from the literal meaning of "the person who deals with another's business" under Article 355 (2) of the Criminal Code. However, the meaning of "the person who deals with another's business" has been stimulated or diverse opinions about that person's business. The majority opinion can be regarded as limited to cases where a person who deals with another's business is acting for another's business, but it goes against the literal meaning of "the processing" to narrow the "B" to "act as acting for another's business." On the other hand, "act as acting for another person" is done by arranging in accordance with the above procedure. The term "act as acting for another person" does not include a limited meaning that acting for another person, as a legal term, is used as an agent (including acting for another person), a representative (management), a representative (management) act as acting for another person, and a representative (management) act as acting for another person, and it is also included in a bank account transfer management counter.

With respect to the literal meaning of a person who administers another's business for a long time, the Supreme Court has consistently stated that "in cases where another person's business is responsible for the protection or management of another person's property based on trust relation, it refers to cases where a certain authority is exercised for the principal to bear the duty of preserving another person's property under contract such as delegation and employment, such as the duty of cooperation for registration, and where one's own business for completing one's own transaction such as purchase and sale and the creation of a security right, and at the same time has the duty of cooperation for preserving the other party's property." (see Supreme Court Decisions 81Do3137, Feb. 8, 1983; 2004Do6890, Mar. 25, 2005). It also includes cases where another person's business as mentioned in the crime of breach of trust is performed on behalf of another person's business, as well as cases where the other party's duty to cooperate in preserving the other party's property, which has already been established by the board of law.

The seller’s duty to prevent the registration of ownership transfer from the sale of real estate to the buyer of this seller, and the obligation to prevent the debtor, who received the loan, from the loan, is one’s own business to complete the transaction at the same time, and at the same time, has the obligation to cooperate in preserving the other party’s property. There is no difference in that protecting the other party’s pecuniary advantage constitutes a typical and fundamental substance of the trust relationship. If one of the two cases is denied, it would be inconsistent to affirm one’s illegality and deny the other.

Unlike Supreme Court en banc Decision 2017Do4027, a majority opinion argues that the obligation to cooperate in the preservation of property to the creditor of the debtor who entered into a mortgage contract is not another person’s business in the narrow interpretation of the language and text of the other person’s business, only where the other person’s business is acting for another person’s business. Furthermore, the majority opinion argues that the duty to protect the establishment of a mortgage in the crime of breach of trust is limited to the case where the other person’s business is acting for another person’s business, and whether the obligation to protect the establishment of a mortgage cannot be deemed as a duty to cooperate in the preservation of property that constitutes the essence of a fiduciary relationship. This attitude goes beyond the Supreme Court’s attitude of establishing a uniform standard of interpretation of the law.

Most of the affairs arising from Acts and subordinate statutes, legal acts, office management, and good faith principles, etc., are mixed with the nature of one’s own affairs and other’s affairs, and thus, it cannot be deemed that there exists only one of the nature of the delegated contracts. When an attorney-at-law who has been entrusted with the affairs of the other party as a typical example of delegation agreements on behalf of the other party, it is the general attitude of precedents to regard the implied agreement for the payment of remuneration (where there is no special agreement for the payment of remuneration, it is the case of actual bilateral contract, and the majority is the case of actual bilateral contract) and each obligation of the delegating and the mandatary are in a quid pro quo relationship. While the mandatory has a duty to manage the affairs entrusted by the delegating, this obligation is one’s own affairs to complete the purpose of the delegation contract in order to receive the remuneration from the delegating. If the attorney-at-law has requested this case, the attorney-at-law has agreed to the effect that it goes against the client’s property interests in the litigation procedure, such as reconciliation, etc., the Majority Opinion also has the nature of a breach of trust.

The Majority Opinion commits an error in narrowly interpreting another person’s business affairs based on the aforementioned erroneous premise, even though the duties following delegation cannot be seen as only another person’s business.

Many opinions seem to be acting on the basis of delegation or employment contract such as delegation or employment. However, it is not necessary to view that a mandatory or an employee acts on behalf of a delegating or an employee. It is sufficient to view that a mandatory or an employee is acting on his/her behalf and that it is deemed that he/she is acting on behalf of a delegating or an employee.

The reason why the Supreme Court's decision is that it is difficult to include only one of the affairs for another, which take place by contract, in cases where the nature of the affairs for the benefit of another person constitutes an important content beyond the incidental and surrounding meaning, even though there is no need to protect and manage the interests of the other person, and the nature of the affairs for the benefit of the other person also exists.

Many opinions are as follows: (a) limiting the scope of a person who administers another’s business to acting as an agent for another person’s business is based on the literal interpretation. However, if a literal interpretation as to a person who administers another’s business does not include cases where a person who is in charge of another’s business is obligated to cooperate in preserving another’s property, the above Supreme Court en banc Decision 2017Do4027 Decided 2017 is no longer maintained.

Therefore, the view that limits anyone who administers another's business to act on behalf of another person is to ignore the established literal meaning of another person's business or to justify conclusion, different from the literal meaning of another person's business depending on the case. 3) Many opinions are inconsistent with the legislative history of the crime of breach of trust and the objective interpretation that takes into account the nature of the crime of breach of trust.

Article 355(2) of the Criminal Code provides that "When a person who administers another's business obtains pecuniary advantage or causes a third party to obtain such benefit by doing an act in violation of his/her duty, thereby causing loss to the principal," it is a general view that it was affected by Article 442(2) of the amended Criminal Code in 1940 of Japan (Article 442(2) of the amended Criminal Code (Article 355(2) of the Civil Code provides that "When a person who administers another's business obtains pecuniary advantage and causes a third party to obtain such profit by doing an act in violation of his/her duty, the person who administers the business for another's own or the third party's business, and causes a third party to obtain such profit, the mortgagee's duty to cooperate with him/her as to the registration of the crime of breach of trust has been recognized as "when the mortgagee causes financial loss to the principal by doing an act in violation of his/her duty."

The German Criminal Code provides that the subject of the crime of breach of trust is "a person who disposes of another person's property recognized by law, delegation by the government agency or juristic act, or abuses the authority to impose an obligation on another person, or violates the duty to take account of another person's property interests imposed by law, delegation by the government agency, law, trust relationship, etc., and thereby, has inflicted damage on another person who is obliged to protect his/her property interests." The German Criminal Code forms a crime of breach of trust in the form that includes both the abuse of authority and the elements of a ship, but the common theory of Germany forms a crime of breach of trust in the form that includes both the elements of a crime of breach of authority abuse and the elements of a ship." The German Supreme Court also takes the same position that "the intrinsic nature of the crime of breach of trust is a violation of the duty to protect another person's property interests." Therefore, the crime of breach of trust is required to protect or manage another person's property based on a trust relationship.

The above legal principles on the crime of breach of trust in Germany also directly affected the interpretation of the crime of breach of trust in Korea, and Korea’s common theory and judicial precedents follow the establishment that the essence of the crime of breach of trust infringes on property by violating another person’s trust. In other words, the crime of breach of trust is an offense involving infringement on property by a business administrator who violates one’s fiduciary duty with respect to himself/herself. Therefore, rather than the relationship between a business administrator and a third party, the establishment of the crime of breach of trust should be examined. The objective interpretation is an interpretation method to find the meaning of the law in accordance with the dual purpose objectively required in legal order. Legal interpretation is not simply repeating the fact that the legislators had already taken into account, but rather, finding it by taking into account the meaning and spirit of the law oriented by the legislators again into account the new situation.

The provisions of the Criminal Act on the crime of breach of trust are only referred to as "other person's business," and there is no provision on what is another person's business. The Supreme Court, on the basis of the fact that the essence of the crime of breach of trust is "a good faith for a trust relationship", established a theory of interpretation that "the business of another person has a duty to protect and manage another person's property, which is based on a trust relationship." (see, e.g., Supreme Court Decision 2010Do3532, May 10, 2012). In addition, the act of breach of trust does not include any act that is naturally expected under the provisions of law, the content of a contract, or the principle of good faith, or any act that is expected not to be done naturally, and thus, it includes any act that does not go against a trust relationship with another person, and the meaning and purpose of the crime of breach of trust, which is based on the provision of the Criminal Act, and such legal principles concerning the act of breach of trust, are not derived from the legislative intent of law.

Although there are cases where it is relatively easy to determine the establishment of a crime, such as the crime of larceny, etc., such as the crime of interference with another’s exercise of rights, it is difficult to determine the establishment of a crime by using a comprehensive and multilateral concept on the elements of the crime, such as the crime of interference with another’s exercise of rights or the crime of interference with another’s exercise of rights. If it is deemed that the crime of interference with another’s exercise of rights should be established in any form, the establishment of the crime of interference with another’s exercise of rights may be limited to an indefinite scope. The requirement of “a person who administers another’s business” includes not only the law and the principle of trust and good faith, but also the substance of business administration, as well as the relationship between the parties. There are many cases where it is unclear what is the essential and fundamental legal relationship between the parties to the crime of interference with another’s exercise of rights, and what is the essential and fundamental legal relationship between the parties to the crime of interference with another’s exercise of rights.

The majority opinion argues that the purpose of the contract to establish a mortgage is to pay the debt. However, the purpose of the contract to establish a mortgage is to secure the real right to real estate by completing the registration of establishment of the mortgage. There is no difference between the objective and nature of the contract to secure the ownership of real estate by completing the registration of establishment of the mortgage. The majority opinion is that the debtor can be relieved of the obligation to establish a mortgage by paying his own borrowed money at any time under the contract to establish a mortgage, but it is difficult to find out what is the grounds that the debtor or the real estate owner may escape from the obligation to pay his/her debt and establish the mortgage even though the due date has not yet been set at the time of the contract to establish the mortgage. The issue in the instant case is not the mortgage, but the right to collateral security is distinct from the mortgage in that the so-called extinction is not recognized. In the case of the right to collateral security, even if the obligation is extinguished or is still extinguished before the repayment becomes final and conclusive, Article 3524(1)6(2) of the Civil Act.

The majority opinion seems to be similar to the real estate collateral security case (referring to the case where the debtor executes a mortgage contract and disposes of the real estate to a third party, such as the creation of a mortgage on the part of the debtor in the absence of the contract). In the case of a promise for payment in kind of real estate, the debtor can extinguish the obligation to perform the registration of transfer of ownership and escape from the obligation even after the exercise of the right of full payment in advance. However, in the case of a promise for payment in kind of real estate, it cannot be seen that the debtor cannot avoid the obligation to perform the registration of establishment of a mortgage (the contract for payment in lieu of real estate is defined in the Civil Act as the "method of the obligation to perform the obligation to establish a mortgage" as the agreement for the establishment of a mortgage on the "security right in the case of the establishment of a mortgage," and the obligation to establish a mortgage immediately is not recognized as the part of the obligation to establish a mortgage on the ground that it does not necessarily mean the obligation to establish a mortgage on the sole basis of the content of the establishment of a mortgage.

Ultimately, whether to punish a person for breach of trust in a certain type of legal relationship ought to be determined based on the objective purpose of the legal order taking into account the protected legal interests of the crime of breach of trust. The court, which takes the duty of interpretation and application under the Criminal Act as the one where the crime of breach of trust is defined as an important crime, should not excessively expand the scope of the punishment, but should excessively reduce the scope of the punishment.

It is against the legal interest of the crime of breach of trust and the established interpretation of the Supreme Court on whether the crime of breach of trust is established or not to decide only where another person’s business is divided into one’s business type. It is in line with the overall system and purpose of the criminal law to punish the crime of breach of trust in a certain case where the other party is unable to acquire this right without fulfilling his/her duty in the conflicting relationship.

A party who entered into a contract does not have a duty to protect or take into account the other party’s pecuniary advantage by fulfilling the obligations stipulated in that contract. Therefore, if the contract is not performed, it is not only liable for nonperformance of obligations but also liable for tort, and it is more rare in cases of infringement of real rights, such as ownership. This is distinguishable not only from tort liability in cases of infringement of real rights, such as ownership, but also from criminal liability in cases of meeting the elements of the Criminal Act.

However, the Supreme Court consistently affirmed the establishment of a crime of breach of trust regarding double sale and double mortgage of real estate, which is a typical act of breach of trust, among the cases in which the obligation under contract is not fulfilled. In the en banc Decision 2017Do4027 Decided the above Supreme Court, it is not necessary to include only the matter of protecting and managing another person’s interest, and it is not necessary to pursue one’s own interest.

B In addition, even if the nature of the business for others exceeds the incidental and surrounding meaning, it constitutes another person’s business.” While re-verification of the legal doctrine, the seller maintained the previous precedents that recognize double selling of real estate as breach of trust by deeming that the seller is in a fiduciary relationship that protects and manages the buyer’s property interest in cooperation with the buyer’s preservation of property.

The above precedents are the business affairs of the business affairs of the business affairs of the business affairs manager, and at the same time, evaluate the essential contents of the business affairs of the other party based on the trust relationship. This is to interpret the meaning of the language and text of the crime of breach of trust in consideration of the legal interests and purposes of the crime of breach of trust as a restrictive interpretation, and thus, intends to punish certain cases, such as double selling of real estate, among the types of non-performance of obligation, as the crime of breach of trust. Many opinions denied the establishment of the crime of breach of trust on the grounds that the duty of establishing collateral security by the person who created the right to collateral security cannot be deemed the business affairs of the other party, without

In addition, in the en banc Decision 2017Do4027 supra, if the seller’s obligation to cooperate in the buyer’s acquisition of rights is deemed as a secondary breach of trust, the same evaluation should also be made as to the act of infringing a fiduciary relationship of the same type as that of double selling of real estate. Therefore, the seller’s obligation to cooperate in the acquisition of rights as in the same manner as double selling of real estate is not possible without performing his/her obligation, and the act of disposal by the manager of the business is deemed as a double mortgage of real estate, which seriously infringes a fiduciary relationship between the parties, and thus, the act of disposal by the manager of the business should be deemed as the act of double selling of real estate. The majority opinion evaluated the two differently, in the sense that the majority opinion determined the same case to be judged differently,

Restrictions on cases where another person’s business is delegated to act as an agent for another person’s business, such as delegation, are inconsistent with the legislative history of the crime of breach of trust and the purpose and purpose and purpose and purpose of breach of trust taking into account the principal nature of the crime of breach of trust, there is no basis.

B. I express my opinion on several issues raised in the concurring opinion with the majority opinion. 1) Whether to punish a double mortgage is an issue of interpreting and applying the crime of breach of trust. It is the court’s duty to apply this provision to the case, unless it is contrary to the Constitution of the Criminal Act concerning the crime of breach of trust. It is difficult to deny the establishment of the crime of breach of trust with respect to double mortgage cases for an abstract reason, aside from revising the method of restricting a certain case or removing the crime of breach of trust in a way that restricts a certain case, or for an abstract reason that it violates the principle of private autonomy. Without the provision on the crime of breach of trust, there is a country that punishs a double mortgage case as a crime of breach of trust without the provision on the crime of breach of trust in Korea, such as Germany and Japan. Unlike Germany, if there is no concern of double disposal by adopting the principle of independent application for the registration of real estate life as Germany, there is a problem of double registration between Korea and Japan concerning the registration of real estate collateral ownership and the registration of real estate collateral ownership.

The criminal involvement in double disposal without being introduced, such as the notarial system on the sale and purchase of real estate, plays a role in preventing double disposal and ensuring the safety of transaction. This can be seen as contributing to the establishment of the principle of private autonomy in that the concept of contract should be observed as agreed upon. Since multiple opinions have been built various forms of systems that can relieve rights privately, it is assumed that it is private autonomy and that it is not necessary to intervene in criminal affairs. However, since the Supreme Court Decision 71Do1544 Decided November 15, 197, which affirmed the establishment of the crime of breach of trust with respect to double disposal of real estate, there is no specific answer as to whether there is change in circumstances that do not need to intervene in criminal affairs as a result of the expansion of civil remedies until now.

The principle of private autonomy, the principle of freedom of contract refers to the freedom to conclude a contract and form the content of the contract. The freedom to reverse the contract and the freedom to violate the contract are not included. The right to guarantee the other party’s expectation to believe and act in the promise is not an area of self-regulation. The right to act is not found in legal order, including the Constitution. Generally, the act of violating a contract is not used as a means of civil remedy, such as the demand for performance or compensation for damages, but in certain cases, the State’s penal power is involved. Several criminal offenses, such as breach of trust, etc., are a typical act of double selling real estate, which is an essential infringement on a trust relationship, as a typical act. The Supreme Court affirmed the establishment of a crime of breach of trust as to double selling real estate, which is an essential violation on a trust relationship, and does not constitute an excessive intervention in the State’s penal authority, and there is no reason to treat double selling real estate as to whether the crime of breach of trust is established or not.

The supplementary opinion on the majority opinion explains that "the social and economic utility that the two parties obtain through the criminal sanction, which is the crime of breach of trust, is different." In the case of double selling, there is a need to enforce the performance of the contract because only monetary compensation can not achieve the purpose of the contract after the fact. However, double mortgage is not only securing the creditor's monetary claim, and there is no need to impose criminal sanctions. However, the supplementary opinion above is distinguishable from the transaction reality or the people's legal sentiment.

The double sale age of real estate is the same in that the purpose of the contract can not be achieved due to the seller or the debtor's offense. Considering the social and economic adverse effects, such as the majority opinion denying the establishment of the crime of breach of trust with respect to double mortgage on real estate, the social and economic utility through the criminal sanction against double mortgage on real estate cannot be deemed to be less than the case of double selling of real estate, rather than the case of double selling of real estate.

If the establishment registration of a neighboring mortgage is not secured prior to or at the same time before the exchange of money following the borrowing and lending of consumption in practice, another means to secure a security interest may not be available.

A security right is secured through the performance by a collateral provider, and there is no way for an obligee to secure a security right. If an obligee is unable to acquire such security right, the pertinent claim becomes a unsecured claim and is likely to become an empty claim if the obligor does not have any other financial resources. Even if an obligee has a damage claim due to nonperformance, in addition to a loan claim against an obligor, it is not helpful for remedy of a right. It is difficult to find out whether the obligee has another monetary claim in a situation where a loan cannot be received.

The supplementary opinion of the majority opinion that a creditor is always socially strong or superior to a debtor is not understood as a national level of a variety of secured loan made in a complex social structure, or is in reality. For example, it may not be difficult for a creditor to incur a large-scale loss by setting up a mortgage on the whole building at the time of completion of construction of an apartment baltel, and by taking out a loan from a bank at the time of completion of construction of an apartment baltel, and by taking out a loan from another bank, in violation of the agreement and obtaining a loan from another bank.In this case, it is also difficult for a creditor who has received a loan and received an ownership transfer registration to set a mortgage on the basis of an agreement to set up a mortgage on the part of a buyer or a real estate and received an ownership transfer registration to a third party. In such a case, the creditor cannot first obtain a loan from a third party as a security or transfer a real estate as a security. If the court agreed to set up a mortgage on the part of a seller or a seller, etc., and the creditor is not subject to a good trust.

The principle of private autonomy can be seen as being guaranteed by being subject to criminal punishment against double mortgage of real estate. However, the real situation is that a secured loan based on a trust relationship does not operate smoothly, and may lead to the bankruptcy of the country by making it impossible for an obligor to receive a timely loan due to loan background. 3) A contract for consumption lending and lending and a contract for settlement of mortgage is a separate contract. Since there is an ex post facto performance of a loan contract under a loan for consumption, the criminal punishment problem arising from the violation of a contract for lease and mortgage cannot be resolved retroactively.

The concurring opinion with the majority opinion is that even if it is impossible to obtain a registration of the establishment of the right to collateral security pursuant to the contract on collateral security by the debtor's act on the part of the debtor, the creditor shall not be punished as the crime of breach of trust since the creditor can obtain a repayment of the secured debt from the debtor, thereby achieving the purpose of the contract on collateral security. However, the establishment of the crime of breach of trust under the Criminal Act shall not be decided without regard to whether the damage was compensated later.It is not different whether the crime of breach of trust is established by deceiving the debtor as if he had the ability and intent to pay back money, and the victim was paid the money later. If the debtor borrowed the creditor with a double mortgage corresponding to the act on collateral security, the crime of breach of trust is established, and the creditor was paid later, and there is no reason to change the establishment of the crime of breach of trust.

The obligee’s conclusion of a contract to establish a right to collateral for the purpose of acquiring the right to collateral. It is nothing more than that the purpose of the contract to establish a right to collateral is to have the right to collateral for the benefit of the obligor’s general property, even after the lapse of the contract. It is nothing more than to say that the acquisition and preservation of the right to collateral for the benefit of the parties to the transaction is of an important significance, and there is no basis to say that it is only an incidental meaning when determining the establishment of a right to collateral for the benefit of the parties to the transaction. 4) Concurrence with the Majority Opinion on multiple opinions that punish double mortgage as a breach of the principle of private autonomy and a complete criminalization of civil cases. However, if following the above opinion, it is difficult to recognize criminal sanctions against any breach of a trust relationship, and thus, it is also difficult to interpret that the act of a representative director of the company and an obligor, in essence, is in the territory of private autonomy or civil law, and thus, constitutes an act of breach of trust within the scope of punishment under the Criminal Act.

As above, the dissenting opinion is supplemented. 7. Opinion concurring with Justice Min You-sook on the dissenting opinion.

A. Various Supreme Court en banc decisions related to the debtor's double disposal and the scope of the precedents to be modified by these decisions are confused.

The issues of the Supreme Court en banc Decision 2019Do9756 Decided February 20, 2020 are limited to the subject matter of the property as movable property, and the subject matter of the instant case is limited to the establishment of a collateral security right after the time of the disposal. The subject matter of the instant case is limited to the property as real property, and the time of the disposal is limited to the time before the establishment of a mortgage after the receipt of the loan. Therefore, the subject matter of the instant Supreme Court en banc Decision 2019Do9756 Decided February 20, and the time of the disposal in this

B. Meanwhile, in the case of double selling of real estate, Supreme Court Decision 2017Do4027 Decided May 17, 2018 maintained that the seller, who received an intermediate payment, constitutes a person who administers another’s business as referred to in the crime of breach of trust, was sentenced to the judgment of the Supreme Court.

Supreme Court Decision 2018Do1584 Decided January 10, 2019 and Supreme Court en banc Decision 2019Do13730 Decided November 28, 2019 ruled that a third party is guilty of a crime of breach of trust in the event that a third party has agreed to establish a mortgage establishment registration by means of a debt security. In the judgment of the original court of the above two cases, "the duty to create a mortgage does not fall under another party's business because it is merely an incidental content for securing the other party's claim," or "the duty to create a mortgage cannot be deemed a third party's business in accordance with the legal principles of the en banc Decision 2014Do363 Decided August 21, 2014," which was the above Supreme Court en banc Decision 2017Do4027 Decided August 21, 2014, was rejected by the majority opinion that the debtor is a person responsible for performing the business of another party's establishment of a mortgage, and all of the above Supreme Court decisions are consistent with the purport.

Although the above two Supreme Court precedents agree with the judgment of the court below that recognized the crime of breach of trust in regard to the voluntary disposal of real estate subject to a low right creation contract without clarifying the explicit legal principles on double mortgage, as long as the judgment of conviction is subject to ex officio determination, the above two Supreme Court decisions based on the existing legal principles that the act of disposing of real estate to a third party without performing the obligation to register the establishment of a mortgage on the premise that it is another person's business shall constitute the crime of breach of trust shall also be subject to the alteration of the precedents.

In the Supreme Court en banc Decision 2004Do1228 Decided November 18, 2004, the Supreme Court changed the existing precedents on whether the act of transporting passengers to a truck without obtaining a license for passenger transport business is a violation of the Passenger Transport Service Act, and the above act was also included in the modified decision, which recognized the violation of the Passenger Transport Service Act without holding separate legal principles.

Therefore, the majority opinion of this case is to revise the Supreme Court's ruling from 6 months to 1 year.

C. Even if not subject to an explicit change in precedents, it is apparent that the Supreme Court has adopted the theory that the breach of trust should be established as the same as the double selling of real estate, which had the same legal structure as that of the above Supreme Court en banc Decision 2017Do4027 Decided the previous Supreme Court en banc Decision. This attitude of the Supreme Court has functioned as a guiding interpretation criteria for not only the judgment of each court, but also the judgment of each investigation agency, even though there is no clear judgment on the attitude of the Supreme Court. In the lower court’s practice, in the case of double selling of real estate, the above Supreme Court’s assertion that “the obligation to create a mortgage according to the above Supreme Court Decision 2014Do3363 Decided the Supreme Court Decision is not the other party’s business,” and still seems to have been affirmed the establishment of breach of trust. Man’s opinion is changed from the above two Supreme Court rulings to the extent that it does not cause confusion in the real situation of another person’s business.

As above, I supplement the arguments of the dissenting opinion.