If a seller has completed a registration of preservation of ownership of a building on the ground as security for the price claim in the site, and has completed a registration of transfer of ownership to a third party other than the buyer's desired, the joint principal's intent of breach of trust

The seller of a building site, constructed by the purchaser in order to secure the intermediate payment and the remainder of the commercial building in his/her name and decided to transfer the ownership of the commercial building to the purchaser directly. Even if the purchaser had already sold the commercial building in his/her name, the seller is not a party to the contract for the sale of the building, and it is difficult to view that the seller is obligated to cooperate with the seller in the process of the transfer of ownership, and even if the seller agreed to sell the building in his/her own manner to allow the buyer to transfer the ownership of the commercial building in his/her name, he/she cannot be deemed as a party to the contract for the sale of the building, and thus, he/she cannot be deemed as a party to the contract for the sale of the building, and even if the seller incurred the loss to the buyer due to the seller's performance of the obligation under the contract for the sale, it constitutes a breach of trust or the buyer's joint crime of breach of trust by participating in the buyer's breach of trust.

Article 355(2) of the Criminal Act

Defendant

Defendant

Attorney Jeon Byung-hoon

Seoul Criminal Court Decision 82No4757 delivered on March 15, 1983

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

The defendant's grounds of appeal Nos. 1 and 2 are examined together.

The judgment of the court of first instance maintained by the court below, based on macroficial evidence, the co-defendant of the first instance court acquired the land of this case purchased from the defendant from the above red order, and constructed one commercial building of this case with a building permit under the name of the defendant on the ground. When the building is completed, registration of preservation of ownership shall be made in the name of the defendant, and when the co-defendant of the first instance court divided the store among the above commercial buildings and sold it in lots to the person who purchased the store in receipt of the above site price within the extent, the defendant, in collaboration with the co-defendant of the first instance court, notwithstanding

A. As Co-defendant in the first instance court sold the above building at KRW 126, 129, and 130 among the above stores, Co-defendants sold the above building at KRW 8,624,00, the obligation to register the ownership of this part upon completion of the construction, and the defendant, even though he was well aware of the fact that the above building was sold, he borrowed 18,30,000,000,000 won from Jin Quarrying and borrowed 18,30,000,000,000 won from the security of the above stores around November 23, 1981.

B. Co-defendant 24, 2, 26, and 3 of the above commercial building, including the sale of 20 underground among the above commercial building in lots to the victims of the above judgment, and the payment of intermediate payment or balance was received from them. Thus, the above dust quarrying duties are performed to each transfer of ownership to the above stores, and the defendant was well aware of the above sale, despite the agreement that Co-defendant 1 borrowed gold 5,624,889 won from the above Jar to pay to the defendant pursuant to the agreement that Co-defendant 24, 26, and 3 of the above building to bear various taxes to be imposed on the commercial building of this case, and in order to pay the above amount to the defendant, he took over 5,624,889 won from the above Jar to the above Quarrying, which was the representative of Jinjin Quarrying on January 26, 1982. After recognizing the fact that the defendant participated in the transfer of ownership in the above Quarrying and the transfer of shares in the Yongsan Do, the defendant's co-defendant's act of breach of trust.

Examining the evidence cited by the judgment of the first instance court by comparing it with the records, we accept the fact-finding of the judgment of the first instance.

However, according to the above evidence, the defendant sold the land of this case to the Hong Y, 100,000 won to the victims on June 19, 1979, and granted a building permit so that the purchaser can build a commercial building on the ground before he receives the intermediate payment and remainder payment, and the building permit is completed in the name of the defendant in order to secure intermediate payment and remainder payment, and if the building is completed under the name of the defendant, the registration of ownership preservation should be completed under the name of the defendant, and the ownership transfer registration should be completed under the name of the above red 10,000 won. The defendant completed the commercial building and completed the registration of ownership preservation in the name of the defendant on July 4, 1980 after acquiring the status of the purchaser of the above red 10,000 won, and the defendant did not pay the remainder of the share transfer interest to the above victims, but the co-defendant 10,000,000 won and the remainder of the share transfer interest to the defendant for the first instance trial.

In the same way, even though it is difficult to view that the defendant is not a party to a contract for the sale of a building site with the above victims, it is difficult to view that he has the obligation to cooperate in the procedure for the transfer registration in relation to the above victims, and even if he agreed to allow the above victims to purchase a store directly while selling the above site, it cannot be viewed that the defendant is in the position of a person in charge of another's business in relation to the above victims since he merely bears the obligation to the buyer and cannot be viewed as the obligation he bears the obligation to bear in relation to the above victims. Further, in order to secure the buyer's claim for part of the balance of the land intermediate payment and remainder payment, the first instance court, who acquired the status of the buyer, requested that the co-defendant pay part of the balance and transfer of the corresponding part to the above fact. Accordingly, if the defendant completed the transfer registration, this constitutes an act of breach of trust even if the defendant suffered any damage to the above victims, or it cannot be argued that it constitutes a joint crime of breach of trust with the above victim.

Therefore, the judgment of the court below which maintained the judgment of the court of first instance which ordered the defendant to be a joint principal offender of the crime of breach of trust is erroneous in the misunderstanding of the legal principles on the crime of breach of trust, or in the misunderstanding of legal principles on joint principal offenders, which affected the conclusion of the judgment, and thus, the case is reversed and remanded to the court below for a new trial.

Justices Kang Jong-young (Presiding Justice)