The judgment below

Among them, the part of violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes is reversed, and this part is applied.

The grounds of appeal are examined.

1. Case summary and key issue

A. The major developments of the instant case are as follows.

(1) On August 20, 2014, the Defendant entered into a contract with the victims to sell KRW 1.38 billion of the first floor of “R” located in Q Q, Geumcheon-gu, Seoul, the joint ownership of the Defendant, N,O, and P (hereinafter “instant real estate”).

The Defendant received down payment of KRW 20 million on the date of the contract, the intermediate payment of KRW 600 million on September 20, 2014, and the remainder KRW 580 million on November 30, 2014, in exchange for the documents necessary for the registration of ownership transfer on November 30, 2014, and delivered the instant real estate to the victims until November 30, 2014.

(2) The Defendant received KRW 200 million on the date of the contract, and the intermediate payment of KRW 600 million on September 30, 2014 from the victims.

(3) On April 13, 2015, the Defendant sold the instant real estate in KRW 1.5 billion to U and V (hereinafter “U, etc.”) and completed the registration of ownership transfer on April 17, 2015.

B. The facts charged in this case purport that the above act by the defendant constitutes a crime of violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (affort).

As to this, the lower court held that the Defendant is in the position of “a person who administers another’s business” as the subject of breach of trust.

It is difficult to see that the intention of breach of trust or the intention of acquisition is difficult to readily conclude, and that this part of the facts charged is not guilty.

(c)

The key issue of the instant case is whether the seller who made the so-called “the double selling of real estate” constituted the crime of breach of trust.

2. Whether a double selling seller of real estate constitutes a crime of breach of trust;

A. The crime of breach of trust under Article 355(2) of the Criminal Act is a crime established when a person administering another’s business obtains pecuniary advantage or causes a third party to do so by doing an act in violation of one’s duty, thereby causing loss to the principal.

The essence of it is another person's trust based on a fiduciary relationship.