The time of double selling of real estate and commencement of breach of trust

Unless otherwise agreed by the special agreement, the seller’s duty to cooperate in the registration of transfer of ownership in the name of the buyer at the same time as the receipt of the balance and the receipt of the down payment and the intermediate payment to the first buyer. As long as the above sales contract has not been legally rescinded, the seller’s act of concluding a sales contract with a third party and receiving the down payment and the intermediate payment is closely related to the violation of the duty of cooperation in the registration of transfer of ownership to the first buyer, and thus, the crime of breach of trust is executed.

Articles 355(2) and 359 of the Criminal Act

Defendant

Prosecutor

Seoul Criminal Court Decision 83No797 delivered on April 14, 1983

The judgment of the court below is reversed, and the case is remanded to the Panel Division of the Seoul Criminal Court.

We examine the prosecutor's grounds of appeal.

1. According to the reasoning of the judgment below, the court below determined that the defendant sold the real estate of this case of this case of this case of this case of this case to three persons, such as the representative china Housing Development Co., Ltd., and the non-indicted Nos., and Kim Jong-jin, and received part of the down payment and part of the intermediate payment, and then sold the real estate of this case to the non-indicted Nos. 1 and received part of the down payment and the intermediate payment from the above joint purchaser upon the above joint purchaser's request for cancellation of Nowon-gu and Kim Jong-jin. The court below concluded that even if the defendant concluded the second sales contract and received part of the intermediate payment in this case of this case where the defendant alleged that the above first sales contract was already cancelled, it cannot be deemed that the defendant started the act of violating the duty of transfer registration of ownership to the above pulse, No. 3, and there was no other evidence to prove that the crime of breach of trust of this case is established.

2. However, as long as the Defendant sold the instant real estate to the first buyer and received the down payment and the intermediate payment, the obligation to cooperate in the registration of transfer of ownership in the name of the buyer at the same time with the balance receipt, and this obligation is mainly the obligation to be borne by the said buyer for the said buyer. Thus, unless it is known that the said contract was lawfully rescinded, the Defendant again concluded a sales contract for the said real estate with a third party and received the down payment and the intermediate payment is closely related to the violation of the duty to cooperate in the registration of transfer of ownership against the said first buyer, and thus, the execution of the crime

Therefore, the court below should have reviewed whether the above first sale contract was lawfully rescinded as alleged by the defendant, and should have judged whether the defendant continued to exist with respect to the first buyer, and whether the first buyer's duty was fulfilled (it cannot be deemed that the effect of the second sale contract is legally effective only by the unilateral expression of the seller's intent of cancellation on the ground that a request for partial rescission has been made by the joint buyer). However, the court below held that the second sale contract cannot be deemed as the commencement of the first buyer's duty as to the first buyer solely on the ground that the defendant asserts that the first sale contract was already rescinded. This is a violation of law by misapprehending the legal principles as to the completion of the breach of trust and failing to exhaust all deliberations, which affected the conclusion of the judgment.

3. Therefore, the judgment of the court below is reversed and the case to be tried again is remanded to the Panel Division of the Seoul Criminal Court. It is so decided as per Disposition by the assent of all participating Justices.

Justices Lee Lee Sung-soo (Presiding Justice)