[1] In a case where the execution of a provisional disposition is completed by receiving a decision prohibiting the disposal of real estate, whether the person having the right to the provisional disposition is recognized as a pecuniary benefit due to the maintenance of the provisional disposition regardless of the actual existence of

[2] The elements for recognizing the other party to the transaction in breach of trust as an accomplice in the act in breach of trust

[3] Whether a “illegal solicitation” may be an “illegal solicitation” for a person who has suffered evidence to the person who has received evidence (affirmative)

[4] In a case where Eul, a de facto management of Gap corporation, completed a provisional disposition registration for prohibition of disposal of Gap corporation's land purchased as a business site, and was prosecuted for receiving money from Byung who intended to purchase the land for solicitation of withdrawal of provisional disposition, the case holding that Eul's act of receiving money was not unlawful to constitute a crime of giving money for breach of trust since Byung's act of giving money does not violate social rules, and thus constitutes a crime of giving money for breach of trust

[1] Where the execution of a provisional disposition is completed by receiving a decision of prohibition of disposal on real estate, the real estate subject to a provisional disposition, regardless of whether the secured claim exists or not, shall be more unfavorable than that of the other real estate in sale and purchase or the provision of security, and when the execution of a provisional disposition is cancelled, the real estate subject to a provisional disposition shall be the profit of owning the real estate with no burden of provisional disposition. In light of the above, the provisional disposition holder is recognized as property profit due to the maintenance of the provisional disposition, and even if it is found that there is no secured claim of the provisional disposition thereafter, the property

[2] In the type of a breach of trust requiring the existence of an opposite-party act, the opposite-party to the breach of trust basically has an interest separate from the other party to the act of breach of trust and is an independent transaction under the opposite-party part, apart from the fact that the other party actively participates in the act of breach of trust, such as inducing the other party to commit the act of breach of trust or participating in the whole process of the act of breach of trust, where a contract with the executor of the act of breach of trust becomes null and void as it constitutes an anti-social juristic act, then it is reasonable to view that the degree of involvement in the act of breach of trust may not be deemed as a principal offender or joint principal offender, in a case where social reasonableness is achieved from the overall point of view of legal order as the degree of involvement does not reach the degree of

[3] The crime of taking property in breach of trust under Article 357 (1) of the Criminal Act and the crime of taking property in breach of trust under Article 357 (2) of the same Act are related to a requisite accomplice. However, this does not necessarily mean that a person who received property in breach of trust and the person who received property in violation of trust shall be punished together, but it may be an illegal solicitation against the person who received property in violation of Article 357 (

[4] The case holding that in case where Eul Co., Ltd. actually managed Gap Co., Ltd. completed a provisional disposition registration for the prohibition of disposal of Gap Co., Ltd.'s land purchased as a business site, but Eul was prosecuted for receiving money from Eul to the effect that Eul would withdraw the provisional disposition, the case held that Eul's act of receiving money in return for withdrawal of provisional disposition does not violate social rules and thus constitutes a crime of giving and receiving property in breach of trust, since it cannot be deemed that Eul clearly and there was no awareness of illegal solicitation; on the other hand, Byung remitted money to Eul's designated account in order to avoid a big loss of business; Byung transferred money to Byung in order to avoid a larger loss; and Byung did not have a clear awareness of whether the said money will ultimately be attributed to Gap Co., Ltd., in light of all the various circumstances, it is not unlawful to constitute a crime of giving and receiving property in breach of trust.

[1] Article 355 (2) of the Criminal Act / [2] Articles 20, 30, 31, 32, and 355 (2) of the Criminal Act; Article 103 of the Civil Act / [3] Article 357 (1) and (2) of the Criminal Act / [4] Articles 20 and 357 (1) and (2) of the Criminal Act

[1] Supreme Court Decision 2006Do4400 Decided January 11, 2007, Supreme Court Decision 2007Do5507 Decided September 20, 2007 (Gong2007Ha, 1724) / [2] Supreme Court Decision 99Do1911 Decided July 23, 199 (Gong199Ha, 1832), Supreme Court Decision 2005Do4915 Decided October 28, 2005 (Gong2005Ha, 1904) / [3] Supreme Court Decision 90Do2257 Decided January 15, 191 (Gong191, 790)

Defendant 1 and one other

Prosecutor

Attorney Go Young-young

Seoul High Court Decision 2009No3595 decided May 28, 2010

The part of the lower judgment against Defendant 1 is reversed, and that part of the case is remanded to the Seoul High Court. The Prosecutor’s appeal against Defendant 2 is dismissed.

The grounds of appeal are examined.

1. Summary of the facts charged and the judgment of the court below

A. The summary of the charges on the Defendants’ violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Misappropriation of trust) and the receipt of the evidence in breach of trust is as follows.

1) Defendant 1 was the representative director of Nonindicted Co. 1 and the auditor of Nonindicted Co. 2, the victim from July 5, 2007 to April 7, 2008. Defendant 2 was the auditor of Nonindicted Co. 3 from July 19, 2007, and became the representative director from September 5 of the same year.

Defendant 1, on July 5, 2007, entered into a contract with Nonindicted Co. 2 for the acquisition of the right to the complex building (hereinafter “instant project”). Defendant 1 was obligated to pay KRW 100 million on the day of the above business title transfer, and to pay KRW 2.9 billion on the ground of the above business right, to Nonindicted Co. 2’s loan to Nonindicted Co. 3, who is holding a license for passenger vehicle terminal business under the Passenger Transport Service Act; Defendant 2 was obligated not to pay any balance of KRW 00 million on the above business; Defendant 1 did not pay any balance of KRW 00 million on the ground that the above business was not carried out by Nonindicted Co. 3, 200,000, on the following grounds: (i) Nonindicted Co. 3’s request for provisional disposition for the said provisional disposition; (ii) Nonindicted Co. 1’s request for sale and purchase of the instant land; and (iii) Nonindicted Co. 4, 2005, supra, Defendant 1 was appointed as Nonindicted Co. 2 auditor on the same day.

2) On November 30, 2007, Defendant 1 received an illegal solicitation from Defendant 2 who wants to purchase the instant land in the name of Nonindicted Co. 3’s non-indicted 3’s name and received a request for withdrawal of the above provisional disposition on the instant land from Defendant 1. On the same day, Defendant 1 received KRW 200 million from the account in the name of Nonindicted Co. 1’s company, KRW 50 million on December 5, 2007, and KRW 440 million on December 10, 2007, including KRW 40 million on December 10, 2007.

3) Defendant 2 provided Defendant 1 with a total of KRW 440 million in return for an illegal solicitation at the same time and place as above.

B. According to the reasoning of the judgment below, the court below maintained the first instance court that acquitted the above charged facts for the following reasons.

1) Defendant 1 paid all the down payment to Nonindicted Co. 2 in accordance with the instant contract, and acquired the right to operation of Nonindicted Co. 2’s existing operator, and accordingly, applied for provisional disposition on the instant land that Nonindicted Co. 2 purchased at his own judgment and expenses. After the seller’s prior notice of objection to the instant contract was received, the buyer’s right to the instant land was extinguished and the provisional disposition was revoked. As such, it is determined that Defendant 1’s withdrawal of the said provisional disposition application is deemed to have been revoked on the ground that the said provisional disposition was inevitable (in fact, the judgment against the Plaintiff was finalized on the ground that the sales contract was revoked in the lawsuit brought against Nonindicted Co. 2 as the Plaintiff in relation to the instant land sales contract against the Plaintiff Co. 7). In light of the specific circumstances, such as the content and nature of the business affairs of Defendant 1 and Nonindicted Co. 2, it is difficult to view that the act of withdrawal in accordance with the facts that Defendant 1 and Nonindicted Co. 2 had become aware of the risk that it would naturally have not occurred at the time of the application for provisional disposition.

2) Defendant 1 appears to have withdrawn an application for provisional disposition based on the circumstance that the right as the purchaser of the instant land of Nonindicted Co. 2 was extinguished and the provisional disposition was terminated. As a result, the judgment became final and conclusive that the right of Nonindicted Co. 2 was extinguished due to the cancellation of the instant contract for the purchase of the instant land, ② Defendant 1 appears to have no practical benefit from withdrawing the application for provisional disposition at the time, and it was argued that the application for provisional disposition was withdrawn because there was a risk of receiving a claim for damages from the seller, and ③ Defendant 2 was aware that the instant contract for the purchase of the instant land concluded between Nonindicted Co. 2 and Nonindicted Co. 7 was cancelled due to the cause attributable to Nonindicted Co. 2, etc., and tried to register the ownership transfer after purchasing the instant land from Nonindicted Co. 7, etc. on October 26, 2007, it is difficult to view that Defendant 1’s request for provisional disposition was unlawful to withdraw the application for provisional disposition, even if it was in violation of the principle of trust and good faith, it was difficult to deem that Defendant 2000 billion won was withdrawn.

2. Judgment of the Supreme Court

A. The part on Defendant 1

1) The crime of breach of trust is established when a person administering another’s business obtains pecuniary advantage or has a third party obtain it by doing so through an act in violation of one’s duty and thereby causes loss to the principal. Here, the term “the time of causing loss to the principal” includes not only cases where actual harm was inflicted but also cases where the risk of actual harm was inflicted (see, e.g., Supreme Court Decisions 93Do169, May 27, 1993; 2007Do3882, Jul. 26, 2007). “an act in violation of one’s duty” includes any act in violation of one’s duty in light of specific circumstances, such as the content and nature of the business, such as the act in violation of one’s duty, or any act in violation of one’s fiduciary relationship with the principal, by failing to perform an act in violation of one’s duty, or by performing an act expected to not have been done. Furthermore, to establish the crime of breach of trust, there is sufficient awareness that one’s own or a third party’s own advantage.

Meanwhile, in cases where the execution of provisional disposition is completed until the execution of provisional disposition upon the decision of prohibition on disposal of real estate, regardless of whether the secured claim exists or not, the real estate subject to provisional disposition is more unfavorable than that of the other real estate in sale and purchase or the provision of security, and when the execution of provisional disposition on the real estate subject to provisional disposition is rescinded, the owner of the right to provisional disposition has the profit from owning the real estate without any burden on the provisional disposition. Even if it is found that the secured claim of provisional disposition does not exist thereafter, it shall not be deemed that there has been no property profit due to the maintenance of the provisional disposition (see Supreme Court Decisions 2006Do4400, Jan. 11, 2007; 2007Do5507, Sept. 20, 2007).

2) In light of the above legal principles, it is difficult to accept the judgment of the court below on Defendant 1 for the following reasons.

According to the evidence duly examined by the lower court and the first instance court, Nonindicted Co. 2: (a) concluded a contract with Nonindicted Co. 10 on September 10, 2005 for the purchase price of KRW 1.8 billion, including the intermediate payment and the balance amount of KRW 1.850 million; and (b) paid KRW 400 million to Nonindicted Co. 2, 300,000; (c) Nonindicted Co. 2, the seller of the instant land, on September 10, 2005, was required to pay the purchase price of KRW 70,000,000,000 to Nonindicted Co. 10; (d) Nonindicted Co. 2, Nonindicted Co. 2, 300,000; and (e) Nonindicted Co. 1, Nonindicted Co. 300,000,000; and (e) Nonindicted Co. 2, Nonindicted Co. 306, supra, who did not pay the remainder of the sales price to Nonindicted Co. 16.

In this factual relationship, Defendant 2’s counsel submitted from the first instance to September 10, 2009 the opinion and summary of the pleading that “it is the case where the owner of the instant land files an application for provisional disposition, but the time of the implementation project is disputed, such as the authorization of the project, and if the bank is delayed due to a large amount of expenses, and damages occur, so early disputes should be repeated. Defendant 1 demanded to preserve the down payment amount of KRW 400 million paid by Nonindicted Co. 2 in return for giving the provisional disposition cancellation and service report at a rapid time, and Defendant 2 demanded that Defendant 2 preserve the down payment amount of KRW 400 million paid by Nonindicted Co. 2 in return for the payment of the provisional disposition cancellation and service report. However, Defendant 2 agreed to reduce the time and saved more than KRW 400 million, and deposited KRW 400,000,000 (including additional tax) with the head of the Tong, which was demanded by Defendant 1, and deposited KRW 100,000,000 won in the account of Nonindicted Co.

In addition, although Defendant 1 failed to pay the purchase price to Nonindicted 6, etc. at the time of filing the application for provisional disposition of this case, it appears that the status as the first purchaser of the land of this case was not renounced. Rather, in order to preserve the status as the first purchaser of the land of this case, it would result in the provisional disposition of this case in consultation with Defendant 1. Therefore, Nonindicted 2 Co., Ltd. is the first purchaser of the land of this case and the right holder of the provisional disposition of this case, which is the land necessary for the business of this case, and there was property interest due to the maintenance of the provisional disposition. Although it was determined that Nonindicted 2 Co. 6, after the withdrawal of the provisional disposition of this case, did not exist because the sales contract was rescinded in the principal lawsuit of the claim for ownership transfer registration filed against Nonindicted 6, etc., and it was determined that there was no right to preserve the provisional disposition of this case, it cannot be deemed that Nonindicted 2

However, it is reasonable to deem that Defendant 1, who was delegated to and dealt with the instant project promoted by Nonindicted Co. 2, in return for the payment of KRW 440 million from the part of Nonindicted Co. 3, and revoked the instant provisional disposition without any consultation with Nonindicted Co. 2, thereby infringing on the property interests of Nonindicted Co. 2, as the first purchaser and the provisional disposition right holder of the instant land. It is sufficient to evaluate that such act by Defendant 1, who is naturally expected to not have been engaged in the instant project, has committed an act in breach of a fiduciary relationship with the principal by performing an act that is anticipated to have to not have been carried out as a matter of course, and therefore, Defendant 1 was fully recognized as having committed an act in violation of a fiduciary relationship with the principal.

Furthermore, it is clear that Defendant 1’s KRW 440 million received in return for the breach of such duty was an illegal solicitation contrary to social rules or the principle of good faith, and it cannot be said that Defendant 1 did not have any awareness of the illegal solicitation.

Nevertheless, the lower court maintained the first instance court that acquitted Defendant 1 on the charge of occupational breach of trust and taking the charge of occupational breach of trust. In so doing, the lower court erred by misapprehending the legal doctrine on the establishment of occupational breach of trust and taking the charge of occupational breach of trust, thereby adversely affecting the conclusion of the judgment. The Prosecutor’s ground of appeal pointing this out is with merit.

B. The part on Defendant 2

1) As to occupational breach of trust

In a type of breach of trust requiring the existence of an opposite party's opposite act, considering that the opposite party is basically an independent transaction with an interest separate from the other party's act of breach of trust and is basically an independent transaction under the opposite part, the other party's act of breach of trust shall actively participate in the act of breach of trust by inducing the other party to commit the act of breach of trust or participating in the whole process of such act of breach of trust, and thus the contract with the executor becomes null and void as it constitutes an anti-social juristic act, it shall be separate that the other party can be the principal or joint principal of the crime of breach of trust. In a case where the degree of involvement does not reach the degree of social reasonableness from the point of view of legal order as the whole, in a case where there is social reasonableness, even though the principal's act was known that it constitutes an act of breach of trust, it shall be deemed that there is no illegality to constitute a crime even if there was an act that can be assessed as an external aiding

In light of the above legal principles and records, the court below's maintenance of the first instance court which acquitted Defendant 2 as to the violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Misappropriation) is just, and there is no error of law such as misunderstanding of legal principles as alleged in the ground for appeal

2) As to the evidence of breach of trust

In the crime of taking property in breach of trust, the term "illegal solicitation" does not necessarily require that it constitutes the substance of occupational breach of trust, and it is sufficient if it is against social rules or the principle of trust and good faith. In determining this, the contents of solicitation and the amount of consideration related thereto, forms, and integrity of transactions, which are legal interests protected by law, should be comprehensively considered, and such solicitation does not necessarily require that it is clearly defined (see Supreme Court Decision 2008Do6987, Dec. 11, 2008, etc.). In addition, the crime of taking property in breach of trust under Article 357 (1) of the Criminal Act and the crime of giving property in breach of trust under Article 357 (2) of the Criminal Act are ordinarily related to a necessary accomplice, but this does not necessarily mean that the person taking property in question should be punished together with the person taking property, and even if the person taking property is a legitimate business, it may be an illegal solicitation (see Supreme Court Decision 90Do2577, Jan. 15, 1991).

In light of the above legal principles, Defendant 2 remitted KRW 440 million to the account in the name of Nonindicted Co. 1 designated by Defendant 1 in return for the withdrawal of provisional disposition in order to avoid a large loss of business promoted by Nonindicted Co. 3, and Defendant 2 cannot be seen as having clearly known whether KRW 440 million will ultimately be attributed to Nonindicted Co. 2, or would be attributed to Defendant 1. In light of the records, Defendant 2’s delivery of KRW 440 million in return for the withdrawal of provisional disposition does not violate social rules, and therefore, it is reasonable to deem that the degree of constituting the crime of misappropriation is not unlawful.

Therefore, the court below's finding the defendant 2 not guilty of the charge of giving evidence in breach of trust is just and acceptable, and there is no error in the misapprehension of legal principles as alleged in the grounds of appeal.

3. Conclusion

Therefore, the part of innocence against Defendant 1 should be reversed. Since the prosecutor filed an appeal against the entire judgment of the court below and the part of innocence is in concurrent relation with the remaining guilty part under the former part of Article 37 of the Criminal Act, the part of the judgment of the court below as to Defendant 1 is reversed, and this part of the case is remanded to the court below for a new trial and determination, and the prosecutor's appeal against Defendant 2 is dismissed. It is so decided as per Disposition by the assent

Justices Lee In-bok (Presiding Justice)