[1] Whether a seller’s transfer of “movable property”, which is the subject matter of sale, to a third party after receiving an intermediate payment from a buyer, constitutes a crime of breach of trust (negative)

[2] The case affirming the judgment below which acquitted the defendant on the charge of breach of trust in the case of acquiring property benefits by transferring the printing machine to his creditor Eul in lieu of paying the existing debt, even though the defendant decided to transfer the printing machine to Gap and received the down payment and intermediate payment, and causing damage to Gap in an amount equivalent to the above amount

[1] [Majority Opinion] (A) In a case where a contract becomes effective when one of the parties agrees to transfer a property right to the other party, and the other party agrees to pay the price thereof (Article 563 of the Civil Act), as a matter of principle, the obligation to be performed by both parties pursuant to the terms and conditions of the contract constitutes “one’s own business,” barring any special circumstance.

(B) If the object of a sale is a movable property, the seller completes the performance of the contract by delivering the object in accordance with the terms of the contract to the buyer, and the buyer acquires the right to the object of sale at that time. Therefore, the seller cannot be deemed to have a duty to cooperate with the buyer in protecting or managing the buyer’s property separate from the obligation to deliver the movable property, which is his/her own business. Since the seller is not in a position to handle his/her business against the buyer, the seller does not constitute a crime of breach of trust under the Criminal Act even if he/she disposed of

[Dissenting Opinion by Justice Ahn Dai-hee, Justice Cha Han-sung, Justice Yang Chang-soo, Justice Shin Young-chul, and Justice Min Il-young] (A) In a case where a contract is implemented through the receipt of intermediate payment between the parties to a sales contract, and the performance of the contract is not possible at will, barring any special circumstances, the performance of the obligation is in accordance with the terms of the contract and the performance of other party’s business, as well as the performance of the other party’s business, which cooperates in preserving the other party’s property. In such a case, the obligor is in the position of “a person who administers another’s business,” who is the subject of the breach of trust, and the act that a person in such position interferes with the other party’s acquisition or preservation of the other party’s property by disposing of it again to a third party before the other party acquires full right to the property through the performance

(B) In a case of a sale of movable property, if the performance of a contract exceeds a certain level due to the receipt of an intermediate payment between the parties, the seller’s act of disposing of the subject matter of the contract to another is logical consistent to punish the seller as a crime of breach of trust, and no other reason exists to treat the subject matter of the sale differently from other property. The Majority Opinion, without reasonable grounds, treats different cases that are essentially similar, is contrary to the principle of equity and is contrary to the principle of equity, and the meaning of the Supreme Court precedents that have contributed to the protection of trust in the transaction by recognizing the establishment of a crime of

[Supplementary Opinion by Justice Kim Ji-hyung, Justice Lee Hong-hoon, and Justice Kim Nung-hwan] (A) In general, in light of the fact that all contracts include a duty under the good faith principle to protect the other party’s pecuniary advantage, one party to a contract constitutes “a person who administers another’s business” as referred to in the crime of breach of trust, it should be interpreted narrowly that one party to a contract takes a fiduciary relationship with the other party’s obligation to protect and manage the right which is the object of the contract as a typical and fundamental property of the other party to the contract. Furthermore, even if one party to the contract takes advantage of the other party’s pecuniary advantage of the other party’s business, if the other party’s business is not a “person who administers another’s business,” which is the subject of the crime of breach of trust, the other party to the contract does not constitute a “person who administers another’s business,” and thus, there is no room to establish the crime of breach of trust. Therefore, without giving a reasonable meaning to limit the meaning of “a person who administers another’s business,” in nature of its obligation.

(B) The Dissenting Opinion argues, in the case of double selling of movable property, other than movable property, the purport of the existing precedents that punish the double selling of movable property, such as real estate, bonds, license, and license, or the disposal of movable property, which is provided as a security for transfer, as well as movable property, may be invoked as it is in the case of double selling of movable property. However, in the case of double selling of movable property, the case of double selling of movable property, other than real property, is dealing with the issues after the right which became the object of the contract was transferred to and reverted to the other party to the contract, and there is no difficulty in both the contracting party’s duty to protect and manage the property rights reverted to the other party to the contract. However, in the case of double selling of movable property, it deals with the issue of whether the right which has already become the object of the contract can be treated as another person’s business in the course of performing the contractual obligation to transfer the rights to the other party to the contract, and thus, the intrinsic structure of recognizing “a person who administers another’s business.”

(C) Ultimately, it is difficult to agree with the Dissent inasmuch as the seller’s act of double selling the subject matter of sale after receiving intermediate payment from the first buyer constitutes a crime of breach of trust even in the case of double selling of movable property on the premise that it constitutes a crime of breach of trust. The inherent limit of the existing precedents recognizing double selling of movable property as a crime of breach of trust is beyond the inherent limit of the precedents recognizing double selling of real estate as a crime of breach of trust, and the legal error on the essence of the crime

[Supplementary Opinion to the Majority Opinion] The Dissenting Opinion argues that the logic that can be applied to the transaction of real estate without putting any essential difference in the structure of transaction of real estate and movable property in the transaction of movable property can not be invoked as it is for the transaction of movable property. Rather, considering the purport of the existing precedents that affirms the existence of a duty of cooperation to protect or manage another person’s property by mediating the unique characteristics of real estate registration procedure, it is more faithful to the basic legal doctrine that deeming the seller to be not a person who administers the buyer’s business is not a person who administers the buyer’s business.

[Supplementary Opinion by Justice Ahn Dai-hee, Justice Yang Chang-soo, and Justice Min Il-young] (A) The concurring opinion with the Majority Opinion gives an excessive meaning to the transition of legislativeism under the Civil Act regarding any change in real rights, and does not fully pay due attention to the aspect of “the substantial illegality of an act or the possibility of influence” due to the need for a difference in the legal structure of the act, and thus, does not properly understand the true meaning of

(B) The precedent does not generally mean the seller's various nonperformance of obligation in the sale and purchase of real estate as a breach of trust, and only when the contractual relationship has reached a certain phase due to the payment of intermediate payments, etc. in the sale and purchase of real estate, the Supreme Court has recognized the crime of breach of trust only in cases where the buyer's acquiring of the acquired right is likely to compromise or significantly obstruct the buyer's acquisition of the acquired right due to the seller's act of double disposal.

(C) The precedents have affirmed the seller’s breach of trust even in the case of double selling of property other than real estate, and this also has been justified in its reasoning. In short, the creditor (in the case of transfer by security) or the assignee of obligation (in the case of transfer by transfer) can be deemed to have a fiduciary relationship protected in the transactional relationship with the creditor (security holder) or the assignee of obligation, and therefore, it can be recognized that the said person constitutes a “person who administers another’s business,” which is the subject of the breach of trust. However, it cannot be said that there is no room to affirm the double selling of property at the stage prior to the completion of the contract. In the above case, to affirm the crime of breach of trust in the above case, it should not be considered to have taken advantage of the fact that the transferee has already acquired the right, but rather to cope with a significant and significant danger inherent to each type of case.

(D) In the sale of movable property, the structure of the seller’s duty does not differ at all from whether the object is real estate or movable property, and recognizing the liability for the crime of breach of trust against double selling of movable property is criminal assessment of a certain quantity among the violations of such duty, there is no reason to treat the real estate and movable property differently. In the sale of movable property, the seller’s duty of delivery is completely identical with that of the sale of movable property. However, in the case of the sale of movable property, the seller’s duty of delivery is entirely identical with that of the sale of movable property, on the other hand, in the specific form of the seller’s duty of transfer of ownership and the guarantee of use and profit. In other words, the seller’s duty of delivery of movable property in the sale of movable property is performing the seller’s duty of transfer of ownership, on the other hand, in many cases, performing the seller’s duty of guarantee of profit, and the latter’s duty of delivery as the content of the seller’s duty of guarantee of profit. Therefore, if the seller is at a certain stage, the seller’s duty of delivery of movable property.

[2] [Majority Opinion] The case affirming the judgment below which acquitted the Defendant on the ground that he did not have the status of dealing with his affairs against the Defendant, in relation to the charges of breach of trust in which the Defendant acquired property benefits by transferring the printing machine to his creditor Eul in lieu of paying the down payment and the intermediate payment, and caused damages to Gap, even though the Defendant received the down payment and the intermediate payment, on the ground that he did not have the status

[Dissenting Opinion by Justice Ahn Dai-hee, Justice Cha Han-sung, Justice Yang Chang-soo, Justice Shin Young-chul, and Justice Min Il-young] As to the above facts charged, the judgment below erred by misapprehending the legal principles as to the elements of the crime of breach of trust in holding that the Defendant’s act of selling a printing machine to Gap and selling it again to Eul and transferring ownership to the part of the intermediate payment is merely merely a non-performance

[1] Article 355 (2) of the Criminal Code, Article 563 of the Civil Code / [2] Article 355 (2) of the Criminal Code

[1] Supreme Court Decision 74Do2215 delivered on December 23, 1975 (Gong1976, 8956), Supreme Court en banc Decision 76Do3962 delivered on November 27, 1979 (Gong1980, 12431) Supreme Court Decision 81Do966 delivered on July 28, 1981 (Gong1981, 1422), Supreme Court Decision 81Do3137 delivered on February 8, 198 (Gong1983, 528), Supreme Court Decision 98Do2526 delivered on November 10, 198 (Gong198Ha, 2903), Supreme Court en banc Decision 209Do6497 delivered on April 15, 199, 2007).

Defendant

Prosecutor

Seoul Southern District Court Decision 2008No745 Decided October 22, 2008

The appeal is dismissed.

The grounds of appeal are examined.

1. The crime of breach of trust is established when a person who administers another's business obtains pecuniary benefits from an act in violation of his/her duty and causes damage to another person who is the principal agent of the business. Thus, the principal of the crime is required to be in a position to deal with another's business. Here, where a person who administers another's business intends to be "a person who administers another's business," the principal agent of the crime must be in a position to deal with another's business. In cases where the principal's intrinsic content goes beyond a simple obligation under a fiduciary relationship between him/her, and the principal is required to protect or manage another's property based on a fiduciary relationship among him/her. If the principal's business is not a business of another person but a person's own business, the principal is not a person who administers another's business (see, e.g., Supreme Court Decisions 75Do2245, May 11, 1976; 86Do2490, Apr. 28, 1987;

The court below affirmed the judgment of the court of first instance which acquitted the defendant on the ground that the defendant's obligation to deliver the printing machine of this case to the non-indicted 1 in accordance with the contract for the sale of movable property of this case is merely a civil obligation, but cannot be deemed a business of another person, since the defendant cannot be deemed to have been in the position of a person in charge of another person's business in relation to the transfer of the printing machine, even though the defendant was provided with the original unit equivalent to KRW 43,610,082 as a sum of KRW 1,20,00,000, and received it, the above printing machine was transferred to non-indicted 2 as a substitute for payment of KRW 84,000,000 to the non-indicted 1.

As seen in the instant sales, where one of the parties agrees to transfer a property right to the other party and the other party agrees to pay the price thereof (Article 563 of the Civil Act). In principle, barring any special circumstance, the obligation to be performed in accordance with the terms and conditions of the contract constitutes “one’s own business.” In a case where the subject matter of sale is movable property, the seller completes the performance of the contract by delivering the subject matter to the buyer in accordance with the terms and conditions of the contract, and the buyer acquires the right to the subject matter. As such, in addition to the obligation to transfer movable property, the seller is not obligated to cooperate with the buyer in protecting or managing the buyer’s property. As the seller is not in a position to manage his/her business against the buyer, the seller is not in a position to transfer the subject matter to the buyer, and thus, the seller does not constitute a crime of breach of trust under

In light of the above legal principles, the court below affirmed the judgment of the court of first instance which acquitted the defendant for the above reasons. The court below did not err in the misapprehension of legal principles as to the meaning of a person who administers another's business in breach of trust as alleged in the

All the Supreme Court precedents cited in the grounds of appeal are related to the existence of a duty to cooperate in preserving another's property as part of the duty to protect or manage another's property based on the fiduciary relationship with the other party, and therefore, they cannot be a proper precedent for different cases.

Therefore, the appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices, except for a dissenting opinion by Justice Ahn Dai-hee, Justice Cha Han-sung, Justice Yang Chang-soo, Justice Shin Young-chul, and Justice Min Il-young, and a concurrence with the Majority Opinion by Justice Kim Ji-hyung, Justice Lee Hong-hoon, Justice Kim Nung-hwan, and Justice Jeon Soo-ahn, and a concurrence with

2. Dissenting Opinion by Justice Ahn Dai-hee, Justice Cha Han-sung, Yang Chang-soo, Justice Shin Young-chul, and Justice Min Il-young

The essence of the crime of breach of trust lies in causing property damage to another person through an act of breach of trust that undermines another person’s trust based on a fiduciary relationship. Such an act of breach of trust includes any act of neglecting a fiduciary relationship with the principal by failing to perform an act that is naturally expected under the provisions of law, the content of a contract, or an act that is anticipated not to perform, or by performing an act that is anticipated not to perform as a matter of course, in light of specific circumstances, such as the content and nature of the business (see, e.g., Supreme Court Decisions 83Do1568, Apr. 28, 1987; 2005Do4640, May 29, 2008).

In light of the essence of the crime of breach of trust, in a case where a contract is implemented by accepting intermediate payments between the parties to a contract, etc. and the performance of the contract is not possible at will, barring any special circumstance, the performance of the obligation in accordance with the content of the contract shall be deemed to be the performance of one’s own business as an obligor and the performance of another’s business that cooperates in preserving the other party’s property at the same time. In such a case, the obligor is in the position of “a person who administers another’s business,” who is the subject of the crime of breach of trust (see, e.g., Supreme Court Decisions 74Do2215, Dec. 23, 1975; 81Do3137, Feb. 8, 1983). The act that a person in such position interferes with the other party’s acquisition or preservation of the other party’s property by disposing of it to the third party before fully acquiring the right to the property through the performance of the obligation, and thus, constitutes a typical act of breach of duty.

In this regard, the Supreme Court has established a precedent that the act of a seller to dispose of the subject matter of sale to a third party after receiving an intermediate payment in the sale and purchase of real estate constitutes a crime of breach of trust as it violates the duty of registration cooperation for the buyer (see Supreme Court Decisions 85Do1873, Jul. 8, 1986; 88Do750, Dec. 13, 198; 2008Do3766, Jul. 10, 2008). Such precedents have been established through a number of cases for a long time, and have functioned as a principle of law established to regulate the economic life of our society.

However, the legal structure of a sales contract is identical in that the change in the right to the object of sale, whether the object of sale is a real property or a movable property, takes place by an agreement between the parties and the method of public announcement; however, the method of public announcement is different in that it is each registered or handed over, and there is no difference between the seller and the buyer in that it is necessary to cooperate between the seller and the buyer in order for the seller to deliver the object in the sale of movable property, as in the case of the buyer’s application for registration by using the documents, and the need to protect the buyer’s trust in accordance with the terms and conditions of the contract is not different in the case of double selling of movable property. In light of the above, the logic of the majority opinion that the above precedents of the Supreme Court established in double selling of movable property do not apply to double selling of movable property.

Furthermore, the Supreme Court recognized the establishment of the crime of breach of trust even in the case of double transfer of license, permit, etc. (see, e.g., Supreme Court Decisions 79Do961, Jul. 10, 1979; 76Do3962, Nov. 27, 1979; 81Do966, Jul. 28, 1981). In the case of claims, the Supreme Court held that the transferor of claims is in a position to manage the business of preserving claims for the transferee of claims, and held that dual transfer of claims can constitute the crime of breach of trust (see, e.g., Supreme Court en banc Decision 97Do666, Apr. 15, 199; 2006Do4935, May 11, 2007). In addition, the Supreme Court clarified that the act of transferring collateral constitutes the act of disposing of movable property to a third party through a transactional relationship between the parties (see, e.g., Supreme Court Decision 198Do12983.

In light of the purport of the established Supreme Court precedents, when the performance of a contract exceeds a certain level due to the receipt of intermediate payments between the parties in the case of a movable sale, the seller’s act of disposing of the object of sale to another is logically consistent to punish the seller as the crime of breach of trust, and there is no reason to treat the movable property differently from other property. The Majority Opinion, in essence, conflicts with the principle of equity by treating the same differently without reasonable grounds. The position of the Majority Opinion is to significantly drop back the meaning of the Supreme Court precedents that have contributed to the protection of trust in the transaction by recognizing the establishment of the crime of breach of trust over double selling or double transfer of property rights

Nevertheless, the court below held that the defendant's act of selling the printing machine of this case to a third party and transferring ownership to an intermediate payment is merely a default on civil liability and does not constitute a crime of breach of trust. The court below erred by misapprehending the legal principles as to the elements of a crime of breach of trust, which affected the conclusion of the judgment. Therefore, the judgment of the court below should be reversed.

3. Concurrence with the Majority by Justice Kim Ji-hyung, Justice Lee Hong-hoon, and Justice Kim Nung-hwan

A. Interpretation of penal provisions should be strict, and excessively expanded or analogical interpretation of the meaning of the express provisions to the disadvantage of the defendant is not permitted as it is contrary to the principle of no punishment without the law (see, e.g., Supreme Court en banc Decision 92Do1428, Oct. 13, 1992; Supreme Court Decision 2001Do5410, Feb. 8, 2002). Furthermore, it should be avoided as it not only causes the risk of infringing on the individual freedom by excessive intervention and industrialization of penal authority, but also causes a negative effect of distort adjustment of interests in a private sector that is reasonable and autonomous.

The crime of breach of trust under Article 355(2) of the Criminal Act is an offense whose elements are to obtain property benefits or to have a third party acquire them to cause damage to himself/herself due to the “act in violation of his/her duties” and its content makes it possible to intervene in the area of private autonomy of individuals in the private law, so it is highly likely that the core of the citizen society’s autonomous area may be infringed, rather than any of the criminal laws. The reason why most countries do not recognize the type of crime of breach of trust today is the reason why most countries do not recognize the type of crime.

As pointed out in the Dissenting Opinion, with respect to the act of breach of trust under the Criminal Act, the Supreme Court is true that “any act that creates a fiduciary relationship with the principal by failing to comply with the statutory provisions, the content of the contract, or any act that is naturally expected under the good faith principle in light of the specific circumstances, such as the content and nature of the business to be dealt with.” However, it is clear that if the legal doctrine of such precedents is generalized and it is interpreted that all acts violating the statutes or the contract under the private law can be punished for breach of trust, it can be punished for breach of trust, it is not permissible to promote the full criminalization, which is a civil case. In this regard, the meaning of “a person who administers another’s business,” which is the subject of the crime of breach of trust, should be interpreted faithfully to the nature of the crime of breach of trust

In particular, with respect to the breach of contractual duty, even though Article 11 of the International Covenant on Civil and Political Rights (11) of the International Covenant on Civil and Political Rights (hereinafter “International Covenant on Civil and Political Rights”) which provides that “No person shall be detained solely on the ground that he/she is unable to perform his/her contractual obligation,” does not emphasize the attitude of the Korean Criminal Law (criminal legal system) which does not have a crime of default on the contractual obligation itself as criminal offense, even if he/she does not focus on the attitude of the Korean Criminal Law (criminal legal system) which does not constitute a crime of breach of contractual obligation. Therefore, it is very careful in the application of the above judicial doctrine on the “act of breach of contractual obligation” as referred to in the crime of breach of contractual obligation.

In light of the above, in general, all contracts include the duty under the good faith principle to protect the other party's property interests, so that one party to the contract constitutes "a person who administers another's business" as referred to in the crime of breach of trust, it shall not be limited to one party to the contract who bears the duty under the above good faith principle, but shall be limited to the other party's obligation to protect or manage the right which is the object of the contract as a typical and fundamental property of the other party to the contract. Even if one party to the contract performs the other party's business for the benefit of the other party to the contract, if it is not for the other party's business within the above meaning, the other party's business is one's own business, and the other party does not constitute "a person who administers another's business," which is the subject of the crime of breach of trust, and thus, the crime of breach of trust is not established (see Supreme Court Decisions 75Do2245, May 11, 197; 86Do2490, Apr. 28, 2009).

In a case where a lessor, who received all or part of the deposit from a lessee, made it impossible for a lessee to use or make profits from the object of lease to a third party by disposing of the object of lease to make it impossible, or a contractor for a construction project, without any justifiable reason, destroyed a contract and subcontracted the construction to a third party with considerable effort and funds, thereby causing property damage to the other party, such as a case where the contractor for the construction project, without any justifiable reason, committed an act contrary to the other party’s trust, which is contrary to the duty of positive and passive performance for the other party to the contract. The reason why the duty of performance is for the benefit of the other party or the failure to perform the duty is contrary to the other party’s trust is just the reason why

Therefore, without giving reasonable meaning to limit and interpret the meaning of "a person who administers another's business," who is the subject of the crime of breach of trust, on the basis of the nature of the business, it should be strictly bordered from the perspective of the principle of no punishment without law by extensively interpreting that the performance of the obligation is for another's interest.

B. The Dissenting Opinion argues that, in addition to movable property, the purport of the existing precedents punishing double selling of movable property, such as real estate, bonds, licenses, and permits, or disposal of movable property provided as security, as breach of trust may be invoked in cases of double selling of movable property in this case.

(1) However, the case of double selling of property, other than real estate, deals with the issues after the right which became the subject matter of a contract was transferred to or reverted to the other party to the contract, and thus one party to the contract does not have to present to the other party’s business the obligation to protect and manage the property right reverted to the other party to the contract. However, in the case of double selling of movable property, it deals with the issue of whether the right which became the subject matter of a contract can be treated as another party’s business in the course of performing the contractual obligation to transfer the right to the other party to the contract before the contract was transferred to the other party to the contract. Thus

First of all, the case of the existing precedents that punish a third party as a crime of breach of trust the act of disposal, such as again providing movable property as security, is premised on the status in which the first secured party has already been reverted to the secured party by possession, amendment or transfer of right to request return. In this case, the secured party is in the position to externally acquire ownership of movable property and the secured party is obliged to use and benefit from collateral as it is and to protect and manage it as the secured party's property. In this respect, the secured party can be regarded as the person who administers another's business

The same holds true in the case of a claim. The precedents that the transferor of a claim is in the position of a person who administers the business of the transferee are dealing with the situation after the claim is transferred effectively to the transferee under an assignment contract between the parties. In other words, this also deals with the situation after the claim is transferred effectively to the assignee. In other words, the transferor of a claim may be recognized as the business of the transferee of the claim on the premise that the transferor bears an obligation based on the trust relationship to protect and manage the claim reverted to the assignee after the right which was the object of the assignment contract was transferred to the assignee. In particular, the above precedents are inappropriate to treat the double selling of a movable property without the payment of the purchase price as identical

In addition, double transfer of a license, permit, etc. may also be accessed from the same perspective. In the case of transfer of a license, permit, etc., even if the transferor is obligated to deliver to the transferee the documents required to apply for change of the license, permit, etc., pursuant to an agreement, the transfer of the right does not take effect through delivery of such documents, and in the internal relationship between the transferor and the transferee except for the involvement of the competent administrative agency, the actual transfer of the right takes effect upon the conclusion of the transfer contract in the internal relationship between the transferor and the transferee. However, considering the fact that the transferor is merely obligated to cooperate with the procedure of change of the name so that the transferor can lawfully exercise his/her right in the relationship between the competent administrative agency and the third party, the transfer of the right

Ultimately, the above precedents cannot be deemed as a typical double selling case where the transfer of the right, which became the subject matter of the contract, becomes impossible due to the double disposal of the seller prior to the performance of the contractual obligation, and it can be recognized that the right, which became the subject matter of the contract, has a fiduciary relationship to protect and manage the subject matter of the contract as the other party’s property when the right, was transferred from one of the parties to the contract from one of the parties to the contract. Therefore, it is inappropriate to invoke the legal doctrine of

(2) Unlike the above cases of bonds, licenses, and permission rights, there is a question as to whether the ownership of the subject matter of sale can be recognized as a fiduciary relationship with regard to the performance of contractual obligations at the stage of transfer of ownership of the subject matter of sale, as in the case of double sale of movable property, and the structure of double sale of movable property is very insufficient.

In light of the consistent position of the precedents punishing double selling of real estate after receiving intermediate payment from the first buyer, the Dissenting Opinion argues that treating double selling of movable property differently is inconsistent with equity.

However, in light of the background of the double selling of real estate in the first place in our criminal law and the circumstances where there is room for critical consideration of this, it is inappropriate to simply prepare for the double selling of real estate and movable property in relation to the establishment of the crime of breach of trust.

As well known, the conclusion of a sales contract with the first purchaser that has adopted the so-called principle of intention with respect to the change in real rights does not constitute embezzlement against the first purchaser because the ownership of the subject matter belongs to the buyer and the transfer of ownership or the delivery of the subject matter is merely merely merely a requisite for setting up against the third party. This is because it is also because the act of double selling is continuously punished as embezzlement under the Japanese criminal law, which has accepted the legislative system of intention so far, in which the above act of double selling is continued to be punished as embezzlement. On the other hand, the German criminal law, which has adopted the legal system on the change in real rights, provides for the violation of the crime of breach of trust under Article 266(1) of the Criminal Act, "the duty to pursue another's property interest imposed by legal act or credit relations, etc." but according to the general interpretation, the establishment of the crime of breach of trust is denied by deeming that the obligation to perform contractual obligations, such as sale, and at the same time, taking into account the other party's interest, does not constitute the obligation of protecting another person's property.

However, from January 1, 1960, the Civil Act adopts the so-called form principle by stipulating that the transfer of real rights to movable property by registration takes effect by delivery (Article 186 and Article 188(1) of the Civil Act). As such, the seller’s disposal of the object of sale to another person before the buyer’s ownership is transferred due to registration or delivery cannot constitute embezzlement any more. Nevertheless, the Supreme Court’s act of double selling of real property constitutes a crime of breach of trust under the old Civil Act, which has adopted the principle of intention as to the change of real rights, has been maintained under the current legal system, which has been converting the attitude of double selling of real property into the principle of intention as to the change of real rights, and therefore has been tried to punish the applicable provisions of law as a form of a crime of breach of trust. Accordingly, the existing precedents on double selling of real property, from the beginning, conflict with the basic principles of the civil law.

In addition, it is necessary to pay attention to the existing precedents regarding double selling of real estate as above, which are contrary to the basic principles of civil law and are logically inconsistent with them, and there is a critical view that the scope of breach of trust has been unfairly expanded by changing the performance of contractual obligations, which are basically one of its own duties, into another's business by using the decent concept such as the duty of registration cooperation, such as the duty of registration cooperation.

The precedents consistently maintained the attitude that the crime of breach of trust is not established in relation to the first buyer in cases where the seller sells real estate doublely and completed the registration of transfer of ownership to the second buyer, while the first buyer in cases where the registration of transfer of ownership has completed the registration of transfer to the second buyer, even if he received the payment from the second buyer, the crime of breach of trust is not established in relation to the latter (see, e.g., Supreme Court Decisions 86Do1112, Dec. 9, 1986; 92Do1223, Dec. 24, 1992; 2008Do11722, Feb. 26, 2009). The attitude of such precedents seems to be critical in recognizing the occurrence of an act of breach of trust against the first buyer and the second buyer having equal legal status before the completion of the registration of transfer of ownership is difficult to easily find reasonable grounds for protecting the latter.

In particular, interpreting that a seller’s property should be treated as another’s property for the buyer by treating the seller’s own property as another’s property without confirming the time, method, and amount of intermediate payment between the contracting parties, solely based on the fact that the seller received the payment from the buyer without confirming matters related to the time, method, and amount of intermediate payment between the contracting parties, is unreasonable, and it cannot be denied that there is any aspect contrary to the essence of bilateral contract premised on guaranteeing equal legal status between the contracting parties. This should be understood in the same context as a person who administers another’s business in relation to the seller, on the ground that the buyer breached his/her duty to pay the remainder of the purchase and sale, can not be deemed as the subject of breach of trust. Furthermore, it is inappropriate to enforce the seller to handle the subject matter of intermediate payment as if the buyer did not receive the remainder of the purchase and sale until the payment is made in full, even if the seller could refuse to transfer ownership to the object of intermediate payment, and at least, it is also necessary to have a separate view that the seller’s duty to receive the remainder payment from the seller’s position.

In addition, it does not affect the existence and degree of liability for nonperformance, in the civil case where both the delay of performance and the impossibility of performance are included in the type of nonperformance, and where an obligor actively makes it impossible for the obligor to perform the contract, the act of failing to perform the obligation of transfer of ownership of the object passively according to the purport of the existing precedents punishing double sale of real estate constitutes a crime of breach of trust if the seller's act of failing to perform the obligation of transfer of ownership of the object does not constitute a crime of breach of trust and actively disposing of ownership of the object and causing an impossible status of performance of the obligation by disposing of

As such, there is room for criticism on the existing precedents that regard double selling of real estate as constituting a crime of breach of trust in various aspects, but considering that the legal theory of such precedents is hard to choose the position of denying it in a fixed sense for a long time, it is not desirable to extend the scope by citing the purport of the existing precedents as is similar to those of the Dissenting Opinion in all contracts aimed at establishing a liability relationship, such as the position of the Dissenting Opinion, in that it would eliminate the limit of the act of breach of trust and the act of breach of trust in all contracts aimed at establishing a liability relationship and make it possible for a judicial institution to apply the law by its own.

In the end, it is difficult to agree with the Dissenting Opinion, on the ground that the act of the seller of double selling the subject matter of sale after receiving intermediate payment from the first buyer is widely constituted a crime of breach of trust even in the case of double selling of movable property on the premise that it constitutes a crime of breach of trust, deeming that the crime of breach of trust is established even in the case of double selling of movable property, is beyond the inherent limit of the existing precedents recognizing double selling of movable property as a crime of breach of trust

C. All acts of worship generated in social life are not subject to criminal punishment, and it does not constitute elements of crime among acts of worship, even though such acts are highly punished, it is obvious in light of the principle of no punishment without prison labor.

The Dissenting Opinion seems to emphasize the aspect of “the possibility of criticism of acts” as to the elements of the crime of breach of trust. However, insofar as the Dissenting Opinion interprets the elements of the crime of breach of trust faithfully with the legal text of “a person who administers another’s business,” it is no choice but to conclude that double selling of movable property alone cannot be recognized.

4. Concurrence with the Majority by Justice Jeon Soo-ahn

Although the purport of the Concurrence with Justice Kim Ji-hyung, Justice Lee Hong-hoon, and Justice Kim Nung-hwan is consistent with the Majority Opinion, it is believed that the importance of essential differences between the delivery of movable property and the registration of real estate has not been sufficiently emphasized in the process of reaching the conclusion of the Opinion with respect to this point.

While the Civil Act provides that the transfer of real rights to movable property takes effect upon delivery of the movable property, the acquisition and loss of real rights due to a juristic act on the movable property takes effect upon registration (Articles 186 and 188(1)), the method of public announcement differs (i.e., the acquisition and loss of real rights due to a juristic act on the movable property). This is historically more than the economic value of the movable property than that of the movable property, and thus special protection or management is recognized as necessary, and unlike movable property, it is difficult for the seller to make public announcement of legal relationship based on public books because of the characteristic of being fixed at a specific location without the movement of the place. This difference in the method of public announcement leads to a completely different form of implementation of contracts aiming at the transfer of each right to movable property from the seller’s act of taking over and receiving the movable property by the buyer. As such, in cases of a sale of movable property, the transfer of rights takes effect upon request for registration of transfer of rights between the seller and the buyer, the buyer’s application for registration of transfer of rights becomes effective when it takes place.

The previous precedents that punish the act of double selling of real estate is different from the transaction of movable property, thereby introducing the concept of “registration cooperation obligation” and recognizing the status of the subject of breach of trust as against the seller of real estate who becomes unable to arbitrarily rescind the contract by receiving the intermediate payment more than the intermediate payment on the basis thereof. However, in the case of double selling of movable property, the seller’s transfer of rights takes effect only by delivering the subject of sale to the buyer, and, barring any special circumstance, there is no duty to deal separately with the transaction by cooperation between the seller and the buyer, from a completely different perspective from the case of the sale of

The Dissenting Opinion argues to the effect that there is no difference between the sale of real estate and the sale of real estate in that it is necessary to cooperate in the delivery and receipt of an object. However, considering the fact that the act of receiving an object is a passive act corresponding to the other party’s active act of delivering the object, and that the act itself cannot be evaluated as a concept of act with an independent meaning that may cause a change in real rights, the logical structure of the seller’s cooperation in the handling of affairs of the buyer’s receipt of the object through the delivery of the object is difficult to accept in discussing whether criminal crimes

The Dissenting Opinion does not purport to punish the seller as a crime of breach of trust on the ground that the seller has not received the price and has not delivered the object, and it does not mean that the buyer does not have to recognize the act of not paying the price after receiving the object as a crime of breach of trust against the seller. In addition, considering the fact that regulating only one party’s non-performance of obligation in a bilateral contract which gives and receives the benefit and the consideration in exchange for each other goes against the principle of equity, in the event of a sale of movable property without any special procedure, which is a joint application for registration, which is the basis of a separate fiduciary relationship, different from real estate, the seller’s act of not delivering the object after receiving the price, is limited to the non-performance of civil law,

Furthermore, in a case where one of the parties is deemed to have a duty to cooperate in the act of protecting or managing the other party's property on the grounds of the conceptual composition of the provision of performance of the obligation that may be assumed by almost all contractual obligations and the receipt thereof, the concept of the other party's business which constitutes the elements of the crime of breach of trust should be strictly expanded, and the boundary between simple nonperformance of obligation and criminal breach of trust and criminal breach of trust will only be completely limited. Furthermore, the acquisition of rights due to the performance of contractual obligations is a legal effect due to the process of business, and is not a process of business or business itself, the acquisition of rights to the object of sale does not constitute another person's business, which serves as the basis of a fiduciary relationship, in that the acquisition of rights to the object of sale of real estate by the buyer does not constitute a business of the other party. The existing precedents punishing double selling of real estate, which constitutes a crime of breach of trust, are not "the obligation of the buyer to cooperate in the buyer's acquisition of rights

Ultimately, we cannot agree to the dissenting opinion that the logic that can be applied to the transaction of real estate without excluding essential differences in the structure of transaction of real estate and movable property in the transaction of movable property is to be invoked as it is in the transaction of movable property. Rather, considering the purport of the existing precedents that affirms the existence of a duty to cooperate in protecting or managing another person's property by mediating the unique characteristics of real estate registration procedure, it is more faithful to the basic legal principle that the seller is not a person who administers the buyer's business.

For the foregoing reasons, the Majority Opinion’s conclusion is justifiable.

5. Opinion concurring with the Dissenting Opinion by Justice Ahn Dai-hee, Justice Yang Chang-soo, and Justice Min Il-young

The concurring opinion with the Majority Opinion is just and the reason why it is not acceptable to the Dissenting Opinion. Accordingly, the concurring opinion with the Dissenting Opinion is not appropriate, and the Dissenting Opinion with respect to the Dissenting Opinion is more detailed and more detailed that the Dissenting Opinion ought to be justified (hereinafter referred to as “the supplementary opinion with respect to the Majority Opinion”), and the supplementary opinion with respect to the concurring opinion with the Majority Opinion by Justice Kim Ji-hyung, Justice Lee Hong-hoon, and Justice Kim Nung-hwan is referred to as the supplementary opinion with respect to the second supplementary opinion).

A. First, it is required to pay attention to the meaning of the matter, which is referred to as the "serious transfer", in this context.

The previous issues dealt with under the name of the so-called “second transfer” refers to cases where: (a) the owner, once, assumes the duty of transfer of ownership by selling, donating, or other contracts that cause transfer of ownership with respect to a specific object; (b) further, takes double the duty of transfer of ownership with respect to the same object by selling, donating, etc. to a third party; (c) but (d) breach of the duty of transfer of ownership with respect to a third party’s obligee, i.e., a third party’s obligee of transfer of ownership, or transfer of an object, etc., in breach of the duty of transfer of ownership with respect to a third party. Therefore, in the above cases, transfer is limited to only one time in a strict sense; and (d) being performed

In this regard, there is no reason to say that the previous sale, which is capable of representing the act of causing the transfer of ownership, has been called a "second sale". Accordingly, for the convenience of discussion, I would like to express my opinion in mind that the sale of real estate at issue and the transfer of movable property by reasons other than the sale and purchase of rights, should be taken into account in order to more clearly and clearly point out compared with the "second sale" of movable property at issue and the "second sale" of movable property. In other words, it refers to only where there is a special need to do so.

B. The first supplementary opinion on the majority opinion argues that it should be careful to intervene in criminal sanctions on the issue of nonperformance of contract.

(1) There is no room to raise any objection against this point. In particular, the criminalization of civil matters ought to avoid the so-called “non-criminalization” request under criminal law as far as possible without any need.

However, on the other hand, even though the type of double selling of real estate is different, the majority opinion and each supplementary opinion thereto points out that there are many cases where there are no particular objections to the establishment of the crime of breach of trust in lieu of the establishment of the crime of breach of trust. On the other hand, in a case where only one example is intended, the Supreme Court has recognized the crime of breach of trust without any doubt in a case where a director of the company has in violation of his duties and has promoted the interests of himself or a third party and has inflicted losses on the company, and there is no room for theoretical theory in a case where such act of breach of trust has been committed in violation of the duty of delegation under the delegation contract existing between the company and the director. Accordingly, the first supplementary opinion is not sufficient to regard the violation of the obligation under the private law as the crime of breach of trust."

(2) Nevertheless, based on the above general attitude, each opinion concurring with the Majority asserts that the attitude that the previous precedents punish the seller as the breach of trust in double selling of real estate has a lot of problems, and thus, it cannot be evaluated positively or at least can be criticized for such attitude, and that the attitude of such precedents should not be recognized as double selling of movable property.

(3) First of all, the precedents point out that the sale and purchase of real estate did not have the intention of applying the principle of breach of trust to the seller’s various nonperformances. The precedents only have affirmed the crime of breach of trust only in cases where the contractual relationship has reached a certain phase due to the payment of intermediate payments, etc. in the real estate sales contract.

In other words, the previous precedents restrain the extreme influence of “the involvement of penal authority in the area of private law guaranteeing individual autonomy” and, in the case of nonperformance of a contract in real estate sale, among ① payment of intermediate payment in time, the real estate sales contract enters into the implementation of this title beyond the conclusion stage. ② From the perspective of the form of act, only in the case of the seller’s intentional act of disposal, the case of the seller’s intentional act of disposal, ③ from the perspective of the result of the act, only the case of the buyer’s intentional act of disposal is liable for the crime of breach of trust.

(4) In addition, such an attitude may be considered to be a reasonable and reasonable basis, such as the provision of double collateral or double transfer of claims, etc., of movable property, as seen in the front and rear. It has a certain relationship with any characteristic of the real estate sale transaction in Korea.

(A) There is no legal guarantee that in almost all cases the buyer acquired the subject matter of the sale even though he paid a considerable portion of the purchase price in the real estate transaction in Korea.

The buyer generally pays the purchase price by dividing it into the down payment, the intermediate payment, and the remainder, and among them, the intermediate payment is paid in several installments at the time of the intermediate payment. In many cases, the seller receives half of the purchase price, and the amount forms a substantial part of the property owned by the general public in many cases.

Nevertheless, unlike most foreign countries, the buyer does not legally guarantee the buyer’s acquisition of the real estate intended for the buyer’s intention. Even upon the conclusion of the contract, there is almost no provisional registration in order to preserve the buyer’s right to claim for registration of ownership. Since the seller receives the balance and then delivers documents necessary for the buyer’s registration of ownership in the future, the buyer is merely the actual neglect of the buyer’s acquisition of the ownership of real estate at that time.

(B) Such a situation means that, on the other hand, a half of the purchase price is actually acquired in reality or at least a considerable portion of the purchase price, the seller may still exercise his/her right as the owner by maintaining his/her ownership registration on the other hand. Here, “right as the owner” includes not only the use and profit, but also the transfer or other disposition, and thus the seller may be effective. In addition, according to the established precedents, such disposition includes a disposition that restricts the buyer’s acquisition of ownership or causes significant obstacle to the buyer. The only exception that does not have the effect of a disposition against a third party is, under limited conditions, deemed to be in violation of good morals and other social order, and its effect is denied by Article 103 of the Civil Act.

(C) Under such legal situation, whether the seller's act of transfer to a third party as above is satisfied to simply treat the seller's act of non-performance of obligation, i.e., compensation for damages caused by money or the cancellation of contract as repayment of the payment.

1) However, there are many cases where a seller has sufficient means to compensate for damages, etc. for a seller who intentionally commits such act of distribution. This is because such act is likely to be performed with the seller’s economic difficulty. If so, the buyer’s above-mentioned right of claim is not substantially useful for remedy.

2) Since the Korean Civil Act does not accept the prior employment privilege system, the prior employment privilege for the pertinent real estate cannot be recognized, as in Articles 325 subparag. 3 and 328 of the Korean Civil Act, for “bonds arising from the sale and purchase of real estate”.

In addition, if the buyer presents the case where the buyer occupies the real estate for the purpose of the buyer's delivery, whether the buyer can have the right to retain the real estate for the purpose of the buyer's request for the delivery of the second buyer who acquired the ownership based on the above claim for damages?In conclusion, it is considered difficult to recognize this as a kind of public trust within a certain scope as a requirement for the acquisition of possession even in the case of a change in the real right to real estate.

(5) If so, to protect a buyer, it is reasonable to take measures to prevent the double transfer of the seller itself from occurring, and to readily understand the criminal sanction of breach of trust as a means of the pressure thereof. In other words, only in a case where the contractual relationship for the sale and purchase of real estate takes place to a certain extent due to the payment of intermediate payment, etc., it is evaluated that the seller constitutes “a person who administers another’s business” by recognizing that the seller “a person who administers another’s business” is “a person who takes charge of another’s business.” In fact, if the buyer pays half of the purchase price or at least a considerable amount of the purchase price without securing the legal protection from the acquisition of ownership, it is unreasonable for the seller to take such payment in such a situation to mean that the seller and the buyer have a fiduciary relationship that keeps and manages the buyer’s property. Rather, it should be viewed as such.

C. The First Supplementary Opinion on the Majority Opinion states that “The act of double selling of real estate constitutes a crime of breach of trust” is a ground for criticism that the previous precedents on double selling of real estate violate the basic principles of civil law and interpret the penal provisions on the crime of breach of trust in the first place, as a result of maintaining the attitude of having committed double selling of real estate under the previous Civil Act that had adopted the principle of intention on the change of real right as to the change of real right as it is under the current legal system converting the relevant applicable provisions into the principle of form as to the change of real right.”

(1) However, even though the Civil Act changed the legislative principle on the change in real rights to real estate due to a juristic act, it did not seem to be different in dealing with specific legal issues pertaining to the change in real rights to real estate due to a juristic act. For example, if the seller registered as the owner purchased the real estate from the seller, but still did not complete the registration of ownership, the third party occupied the real estate without permission, then the buyer, who could directly demand the return of the real estate from the possessor without permission, (see Supreme Court Decision 4287Da326, Mar. 12, 195) under the Civil Act, could not directly make such a claim under the new Civil Act (see Supreme Court Decision 69Da1485, Oct. 14, 1969). However, the buyer can accomplish the same result by exercising the seller's right to request the return of real estate by exercising the right to claim the return of real estate (see, e.g., Supreme Court Decision 79Da289, Jul. 19, 1980).

In addition, even in the case of double selling, even if the ownership is transferred to the buyer without registration as a matter of principle even if the ownership is transferred to the buyer, the buyer’s acquisition of the ownership shall be prohibited from setting up against a third party (Article 177 of the Civil Code), and the so-called “defensive nature” that the ownership as a real right can be asserted not only in the relationship between the parties, but also in the relationship with the third party, as well as in the relationship with the third party. Therefore, the ownership as a real right is very incomplete in terms of its content.

Therefore, if a seller has completed a registration of ownership in the future with respect to the sale of the second sale, the first buyer may lose his/her right without his/her own intention, and the first buyer shall not lose his/her right. The first content of all rights is that the buyer does not lose his/her right or have any other legal disadvantage unless it is decided by the intention of the right holder (or law).

(2) As long as the case did not change the view on the illegality of double selling of real estate, it would rather be more clear that the case did not take a sudden change in determining the innocence of double seller on the criminal treatment of double seller of real estate.

In other words, the loss of “the first buyer’s ownership” or “the ownership under a nominal title” due to the double selling of the above is a seller’s still owner unless there is any clear registration under the new Civil Act, and thus, the seller is unable to acquire ownership by completing the registration of ownership in the second buyer’s future. However, our prior legal professionals find that there is no particular difference in that the loss of “the incomplete ownership” is illegal solely for the reason that the loss of “the impossibility of acquiring ownership” changes into “the impossibility of acquiring ownership.” Based on such understanding, it is more appropriate to view that they basically dealt with both in the same way from the perspective of criminal law, which takes the sanction for social anti-value act and the prevention thereof as the principal subject to the punishment for such act. However, it is merely due to the interpretation of Article 355(1) of the Criminal Act.

(3) The First Supplementary Opinion on the Majority Opinion is that the establishment of a crime of breach of trust is denied in double selling of real estate in Germany, which takes the so-called form principle as our country, for example, with regard to changes in real right to real estate due to a juristic act, and this is a logical conclusion under the legal system of form.

However, it is not necessary to discuss in detail about Germany, which differs from our legal situation and social and economic situation, because there is no explanation on what reason it becomes a "reasonable logical return" (in addition, without the need to cite the words "the life of the law, not logic," we conduct a witness and practice in many legal issues without restricting or excluding the so-called "dicarity return" as the case type differs. However, unlike our country, in German real estate transactions, there is no transaction practice in which considerable portion of the price is entered into the reality in the seller's number before securing the buyer's transfer of ownership, and real estate transactions are conducted with the parties' involvement and advice in the two notary public without any exception, and only the parties themselves can pay and receive the price, the transfer registration, and the execution of the contract such as securing it, etc. are conducted through notary public, and thus, it cannot be presented only in exceptional cases where the double selling of real estate in Germany is extremely extreme except in exceptional cases.

As such, the assessment of “reasonable logical conclusion” by citing the case of Germany, which differs from the real aspect of real estate transactions, is to disregarding a serious demand in the interpretation and operation of the law, “realistic orientation.” Ultimately, our practical situation and needs need need need need for the implementation of the crime of breach of trust.

(4) As such, each supplementary opinion does not pay sufficient attention to the aspect of “indivability” of the act’s substantial illegality or supplementary opinion as it gives excessive meaning to the transition of legislativeism under the Civil Act, and thereby, it is not appropriate to understand the true meaning of the previous precedents in a proper manner.

D. The supplementary opinion to the Majority Opinion states that each seller who double sold an object is liable to commit a crime of breach of trust, and that the buyer who is the other party to the contract is not asked to ask for the apparent failure of the other party to the contract. It goes against the essence of the bilateral contract premised on the guarantee of equal legal status between the contracting parties.”

However, this is to disregard the difference in the nature of the principal duty of the party arising from a sales contract, i.e., the seller’s duty of transfer of rights and duty of delivery, and the buyer’s duty of payment of money. Generally, a person bearing the duty of payment of money is satisfied by delivering a certain amount of money, and barring any special circumstances, barring any special circumstance, he/she does not assume any duty on the storage, management, etc. of the money itself subject to delivery. The debtor’s financing of money is entirely entrusted to the debtor himself/herself, which is at the night. For the foregoing reasons, if the director entrusted with the duty of the company’s business intentionally seeks private interest and inflicts losses on the company, the breach of trust should be determined if the director entrusted with the duty of the company’s business intentionally fails to prepare remuneration, etc. to be paid to the officer, or spent in another place, the intrinsic nature of the contract is that the legal relationship between the company and the director constitutes a bilateral contract, not a so-called “an equal relationship between the parties to the bilateral contract,” and thus, it should not be deemed as a “a breach of trust agreement.”

E. Meanwhile, the concurring opinion with the Majority points out that the method of disclosing changes in real rights is different as the main argument that the double selling of movable property should be treated differently from the double selling of movable property.

In other words, in the case of a real estate sale contract, registration procedures are required in addition to the delivery of the object, so there is a fiduciary relationship and a position as an administrator of another person’s business, which serves as the basis for the establishment of the crime of breach of trust, through which these procedures arise, while double selling of movable property, which differs in the essence of the transaction structure, is merely a non-performance of civil law. In historically, the reason is that the real estate is much more economic value than that of movable property

(1) However, it is doubtful whether it is justified to make a double selling of real estate, on the other hand, by making a double seller’s judgment confirming the responsibility for the crime of breach of trust, while evaluating the attitude of the seller to put the seller on the part of the double selling of real estate into the crime of breach of trust.

In light of the above view, “(the same as the above] legal doctrine has been hard to choose the position of denying it from the case law for a long time,” it is a kind of argument on the propriety of the legal doctrine, considering the fact that it is difficult to choose the position of denying it from the case law.” However, if it is hard to say, it is difficult to say that the above opinion is “the force of a factual fact that has already been made.” However, if it is asserted that there is a single position that can be the attitude of the previous precedents but it is not possible to agree with it for any other reason, if it is “legal error,” the previous precedents should not be silent without reservation of the discussion on the party. If the previous precedents on double selling of real estate are “legal error,” what aspect “it is difficult to choose the position of denying it?” Such an implied view is more justifiable than that of “the fact that the above opinion has already been made.”

(2) The first supplementary opinion on the Majority Opinion acknowledges that “the case of double selling of movable property is very insufficient to protect the case of double selling of movable property and its structure.” However, it is inappropriate to simply prepare the double selling of movable property and movable property in an ordinary area in relation to the establishment of the crime of breach of trust.” Furthermore, the second supplementary opinion states that “The procedure for transferring the rights of movable property and movable property has a completely different legal structure and character.”

However, the structure of the seller's duty in the sale does not completely differ whether the object is a real property or a movable. If recognizing the responsibility for the crime of breach of trust against double selling is a criminal assessment of a certain quantity among the violations of such duty, there is no reason to treat the real estate and movable property differently.

(A) In the sale, the seller’s duty is in a position to allow the buyer to enjoy all factual and legal benefits relating to the subject matter, unless otherwise specifically agreed.

In addition, since the main interest in an object can be summarized as a profit from use, profit and disposition (see Article 211 of the Civil Act with respect to ownership), the seller of the object is obligated to transfer the ownership of the object to the buyer and to deliver the object to the buyer so that the buyer can use and benefit from the object (see Supreme Court Decision 66Da1149, Sept. 27, 1966). However, the donor is not obligated to transfer the ownership of the object, but also has the obligation to allow the donee to use and benefit from the donated object unless there are other special circumstances. In addition, Supreme Court Decision 73Da114, Jul. 24, 1973, Supreme Court Decision 73Da114, Jul. 24, 1973, held that unless the buyer of the real estate has completed the registration, the seller is obligated to cooperate with the seller so that he can use and benefit from the object continuously equivalent to the owner.)

Since the authority of disposition in our law is in principle an owner, the ownership should be transferred to the buyer in order to guarantee the buyer’s free and smooth disposition (Article 568(1) of the Civil Act explicitly provides for this point). Furthermore, the real use and profit-making of an object generally requires de facto control, i.e., possession (Article 192(1) of the Civil Act), so the seller bears not only the obligation to guarantee the buyer’s use and profit-making but also the obligation to deliver the object to the buyer on the condition of the means or premise of the guarantee.

However, our Real Rights Act requires registration of real estate and delivery of movable property (Article 186, Article 188(1) of the Civil Act). Among them, the transfer of ownership is merely a form of the duty to register ownership in real estate and the duty to deliver in movable property.

(B) As can be seen, the seller’s obligation and structure in the sale of movable property are completely identical to that in the sale of movable property. However, the seller’s duty of delivery is merely a specific form of the seller’s duty of transferring ownership on the one hand and guaranteeing the use and profit-making on the other hand. In other words, in the sale of movable property, the seller’s duty of transferring ownership on the other hand, while performing the seller’s duty of guaranteeing profit-making in many cases, the seller’s duty of transferring ownership on the other hand, and the seller’s duty of guaranteeing profit-making in the other hand, and the latter’s duty of transferring ownership on the other hand is strictly performed. Here, the former’s aspect is responding to the seller’s duty of transferring ownership,

In addition, in the sale of movable property, the delivery of an object does not always have the same effect as in the front and rear side of the contract, as the performance of the above two obligations. For example, in a case where a seller of specific movable property damages an object by neglecting the custody of the object after the conclusion of the contract, the obligation of transfer of ownership on the delivery of the object is legally extinguished, but the obligation of delivery as part of the obligation of guarantee of benefits to its use is not “performance in accordance with the substance of the obligation”, and thus, he is liable for nonperformance due to incomplete payment.

(C) In other words, considering that the discussion is limited to the duty of delivery as a seller of movable property to transfer ownership, the “delivery” here refers to the transfer of possession in accordance with the intention of the parties concerned, such as the amendment, etc. of possession under the law, even though the “delivery” is not a “delivery” (Article 189, Article 190, etc. of the Civil Act). Such “delivery” requires a person’s cooperation between the person to deliver and the person to deliver. No delivery may take place unless the person to deliver fails to “delivery” for the transfer of ownership, and delivery does not take place if the person to deliver is not to receive the delivery, i.e., delivery, even if the delivery is to be made.

This does not differ from the duty to register ownership in the sale of real estate. The real estate seller’s duty to cooperate in the registration is merely a specific content of the obligation that requires the buyer to become the owner of an object, such as the duty to deliver the movable property seller’s duty to the buyer. The content of the obligation is that the “cooperative” as the content of the obligation is also an appearance at the registry with the registration required documents, or that the registration required documents are to be offered to the buyer as it is actually common. This does not change from the fact that the seller of movable property provides the object to have the buyer become the owner of the movable property.

(D) Meanwhile, the second supplementary opinion on the majority opinion argues that “The receipt of a thing is only passive factual act corresponding to the other party’s active act of delivery of the thing, and it cannot be evaluated as an act with an independent meaning that may cause a change in real rights, and the logical structure of the seller’s cooperation for the handling of affairs of the buyer’s receipt of the thing through delivery of the thing is not acceptable at least in discussing whether the crime of breach of trust is established.”

However, the subject of discussion here is mainly whether or not the buyer bears the obligation of the seller, not the buyer, based on the sales contract (the so-called "registration cooperation obligation" in the crime of double seller's breach of trust is discussed in the point of view of the seller's duty as a matter of course), and it is not a problem whether or not the behavior required for the buyer in relation to the delivery of the goods in the sale of movable property takes place.

(E) Therefore, if a seller of movable property takes part in a certain phase, it can be sufficiently seen that he/she is in the position of “a person who administers his/her business” for the buyer’s acquisition of ownership as well as that of the seller of movable property.

(3) Meanwhile, the majority opinion states that “If the object of sale is a movable, the seller shall have the obligation to deliver the object to the buyer in accordance with the terms and conditions stipulated in the contract, and the performance of the contract shall be completed by the delivery, the seller shall not be deemed to have any obligation to cooperate with the buyer in protecting or managing the buyer’s property separately.”

However, there is a question of what the seller's "delivery obligation" specifically refers to, and such a question is a typical circular logic. In other words, the premise that the performance of the "delivery obligation" is the "self-reliance business" and is not the "other person's business" is that it is a prior premise, however, the problem is whether the seller's performance of the seller's obligation of delivery in double selling of movable property, not a different one.

In addition, the above opinion argues that the seller cannot be held liable to protect the buyer's property separately from the seller of the movable property transaction. However, such entry theory is against the seller's duty of cooperation, such as property protection, which corresponds to the buyer's future registration of ownership, since the delivery of the object is corresponding to the part of the seller's registration of ownership in the real property transaction. Thus, the non-delivery of the object can be a breach of trust, such as double selling of the real property, which corresponds to the buyer's future registration.

F. The precedents have affirmed the seller’s breach of trust even in the case of double selling, etc. of other properties except real estate. This is also based on the reasons acceptable.

(1) According to the Majority Opinion, on the ground that “The existing precedent which punishs a third party to an act of disposal, such as again offering movable property offered as security,” a person who has created a security interest, is deemed to be an administrator of another person’s business, who is the subject of breach of trust,” the Majority Opinion states that “The mortgagee is in the position of having the mortgagee already reverted a security interest to the secured party, having the right to externally acquire ownership over the secured property, and the person who has created a security interest bears the duty to protect and manage the secured property while using and benefit

In addition, this point is the same in the case of a bond “second transfer” case, and the precedent to the effect that the transferor is in the position of a person who administers the affairs of the transferee may be deemed to be a “person who administers another’s affairs” on the premise that the claim is transferred by the declaration of intention between the parties and the transferee of the claim,” and it is also the legal doctrine premised on the formation of a fiduciary relationship to protect and manage another’s property after the transfer of the right to the object.

Therefore, in any of these cases, it can be seen that the dual disposal of movable property is completely different from that of double selling of movable property, which is a problem before completing the performance of contractual obligations.

(2) First, the issue of double transfer of claims shall be viewed as a matter of double transfer of claims.

(A) The transferor of a claim bears the duty of setting up a requisite to set up against the obligor and a third party with respect to the assignment of claim to the transferee, based on the claim contract concerning the sale and purchase, the provision of security, etc., which serves as the cause of the assignment of claim.

It is understood that the transferor's duty is connected to the contractual duty to allow the transferee to fully enjoy the benefit corresponding to the purpose or meaning of the cause contract, based on the act of cause of the assignment of claim.

In addition, in the event that the transferor fails to perform the above-mentioned requisites for counterclaim against the transfer of claims, the transferor's dual transfer of claims shall transfer the target bonds to a third party and first fulfill the requirements for counterclaim against the transfer of the claim, thereby making the transferee's claim acquisition based on the transfer of the claim 1 return to "non-performance" in the actual situation. Therefore, it is nothing more than the act of failing to perform the above contractual obligations.

(B) However, the Majority Opinion’s opinion on the Majority Opinion is that “a fiduciary relationship in which a transferor’s breach of trust can be recognized in double transfer of bonds is the transferor of bonds after a claim was transferred to the transferee, and which protects and manages the claim reverted to the transferee of the bonds.”

However, it can be understood that the transferor can recognize the status of “a person who administers another’s business” inasmuch as the bonds are transferred to the assignee is not a factor that can be easily assessed without the basis of the viewpoint of “actual guarantee of contractual interest”, which is considered as important in the contractual relationship, by ascertaining that “transfer of the right” is only a formal attribution of the claim.

(C) The issue of double transfer of a claim is that the transferor himself/herself fails to perform the obligation of counter-performance that is to be borne by the contract for the cause of the transfer of a claim. As such, since a claim acquired without meeting the requisite for counter-performance cannot be set up against the obligor, the transferee cannot make a claim for performance of the original claim against the obligor who denies the transfer of the claim, and furthermore, his/her claim cannot be acquired even in relation to a third party, and therefore, the transferor may lose his/her claim by giving the transferor by meeting the requisite for counter-performance to the second transferee in the case of double transfer.

In addition, the real reason for the precedent to affirm the fiduciary relationship in which the transferor protects and manages the transferor's property, and to hold the transferor liable for the breach of trust against the double transfer of the claim is true is that the fiduciary relationship can be acknowledged regardless of the original contract, rather than because the transferor has intentionally caused the significant and significant result, such as the loss of the transferee's right, by taking advantage of the influencies of the requisite against the transferee's non-performance of obligation, rather than the transferor. In other words, the transferor intentionally realized the significant and significant risk accompanied by the breach of his/her own duty.

It is reasonable to affirm the transferor's fiduciary relationship to protect and manage the transferee's property in consideration of such risks, and to impose criminal sanctions on the realization of such risks.

(3) The above understanding is no different in the case of dual transfer of movable property offered as security for transfer or so-called license, permission, etc. Here, unlike the case where the Majority Opinion is inconsistent with the first supplementary opinion of the Majority Opinion, it shall be deemed to be limited to the former, once, except in the case where the latter is explained from a more substantive point of view.

(A) As the first supplementary opinion on the majority opinion is properly pointed out, the second precedent on double disposal of mortgaged movables maintains the previous real possession through the alteration of possession without exception, and it is about the case where the secured person loses the creditor's ownership of the object by disposing of it by transferring it to a third party (see, e.g., Supreme Court Decision 89Do350, Jul. 25, 1989).

(B) Of course, in these cases, the contract to establish a security itself should be deemed to have been fulfilled as it is by the obligee’s acquisition of ownership. However, in the case of the transfer of security for movable property, even though ownership of the object was transferred to the obligee, the transferor still takes advantage of his/her real possession of the object without previous conviction, and can dispose of it to a third party as if he/she were the owner of the object. On the other hand, even though the obligee acquired ownership of the object as security, the obligee may lose his/her right due to the said act of disposal by the offerer’s above act of disposal by distribution, etc., and may also be seriously and seriously at risk.

(C) As such, the risk of the obligee’s loss of right is naturally accompanied by a movable property transfer transaction. Therefore, the obligee acquiring security should also take the risk of loss of right and enter into such transaction. However, considering the fact that the movable property transfer is mainly carried out for the convenience of the person who gains credit, and the fact that the movable property transfer security has a great significance in today’s credit transaction, the purport of the precedent is to protect the obligee who has realized the foregoing risk and who has gained illegal benefits which may not be permitted by realizing the aforementioned risk, and thereby, to ensure the safety of the movable property transfer transaction by protecting the obligee who has gained real benefits of credit while taking such risk.

(4) Meanwhile, unlike the case where there are different opinions on the Majority Opinion, the Majority Opinion explains the so-called dual transfer of license, permit, etc. from a more substantive point of view. Such explanation should be carried out regardless of whether the object is real estate or movable property, or whether it is a claim or any other right.

(5) In sum, a creditor (in the case of transfer by security) or a creditor (in the case of transfer by transfer) can only acquire the object of transfer, and it can be affirmed that a person who has created a security interest or a transferee of a claim can be “a person who administers another’s business,” which is the subject of the breach of trust, and therefore, it cannot be said that there is no room to affirm the double selling of movable property in the case of double selling of movable property at the stage prior to the completion of the contract.

In addition, it should be viewed that the precedent's finding the crime of breach of trust in the above cases is not based on the fact that the transferee has already acquired the right as seen earlier, but rather to cope with the significant and serious risks inherent to each type of case.

(6) Meanwhile, the Majority Opinion’s opinion on the Majority Opinion states that “Where a lessee disposes of the leased object to a third party while receiving all or part of the deposit from the lessee and thereby making it impossible for the lessee to use or make profits from the leased object,” the liability for the crime of breach of trust cannot be imposed. However, this point is an issue that is entirely irrelevant to the factual relation of the instant case, and this conclusion is not easy, and it requires more serious discussion on the nature of the right of lease and other matters.

G. We understand the attitude of the judicial precedents on double selling of real estate as above, and if the consideration behind the case is carried out as it is, and this cannot be seen differently in the double selling of movable property, as in the instant facts charged, if the Defendant, as in the instant facts charged, intended to transfer the printing machine (the agreed purchase price reaches KRW 80,000,000) to another person and received intermediate payment, made a double selling of the printing machine and delivering it to a third party, it should be recognized as the crime of breach of trust against the Defendant. Accordingly, the lower court’s judgment denying the Defendant’s criminal liability should be reversed.

Chief Justice Park Si-hwan (Presiding Justice)