Where the real estate has been transferred to another person without completing the registration after being transferred to payment in kind, or where the real estate has been transferred to another person, the crime of breach

As long as the owner of real estate sells the same real estate to the first buyer and receives the down payment and the intermediate payment, the duty to cooperate in the registration of transfer of ownership in the name of the buyer at the same time, and this duty is mainly borne by the buyer for the said buyer. Thus, unless it is known that the above sales contract has been legally rescinded, it is close to the breach of the duty to cooperate with the third party on the transfer of ownership and receive the down payment and the intermediate payment, and thus, it is deemed that the commencement of the crime of breach of trust is the case where the owner of real estate transfers it to the third party without completing the registration of transfer of ownership to the transferee. This theory is the same.

Articles 355(2) and 359 of the Criminal Act

Supreme Court Decision 83Do2057 Delivered on October 11, 1983

Defendant

Prosecutor and Defendant

Busan District Court Decision 82No320 delivered on June 7, 1983

The judgment below is reversed, and the case is remanded to Busan District Court Panel Division.

1. The defendant's grounds of appeal are examined.

Examining the trial evidence of the court below and the court of first instance cited by the court below in comparison with the records, it can be justified in its judgment, and there is no error of misconception of facts or incomplete hearing due to violation of the rules of evidence, such as the theory of lawsuit, and there is no error of law

2. Prosecutor's grounds of appeal are examined.

According to the reasoning of the judgment of the court below, since the defendant agreed to sell the above apartment at the construction site office of f1,240,000 won in payment in lieu of the debt amount of 12,400,000 won, which the defendant lent to the victim Park Dong-dong, Taedong-dong-dong-dong-dong-dong-dong 61-2 to the above apartment building construction site office of 1980,000 won, the above apartment house " Eul" was completed and the above apartment was obligated to execute the procedure for ownership transfer transfer registration after completion of the above apartment, despite the duty, the above apartment 105,000 won was violated, and the above apartment 105,2350,000 won was sold to Lee Jae-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-gu-gu-gu-gu-gu-

However, as long as the real estate owner sells the real estate to the first buyer and receives the down payment and the intermediate payment, it is the duty to cooperate in the registration of transfer of ownership in the name of the buyer at the same time unless the special agreement is reached, and this duty is mainly the duty to cooperate in the registration of transfer of ownership in the name of the said buyer. Thus, unless the above sales contract is lawfully rescinded, it is not known that it is concluded with the third party and receives the down payment and the intermediate payment again, it is close to the violation of the duty to cooperate in the registration of transfer of ownership to the first buyer, and it is an execution of breach of trust (see Supreme Court Decision 83Do2057, Oct. 11, 1983). Therefore, such theory is the same where the real estate owner transfers the real estate to the transferee without completing the registration of transfer of ownership to the third party.

The court below determined that the defendant lent debt amount of 12.4 million won to the victim Park Jae-dong to be the payment in kind for the construction of a scenic apartment building from the victim Park Jae-dong, and that the defendant transferred the above apartment house of 105 and 203 to Dong on March 20, 1980, and the above apartment of 105,000 won to Lee Jae-dong on July 9, 1980, and the above apartment of 105,2350,000 won to Lee Jae-dong, and the above apartment of 203,000 won to the non-indicted 1,2355,00,000 won, and the building was ordered to be ordered to Dong, etc. at the same time, by transferring the above real estate to the above Dong Dong as the payment in kind, and even though the defendant has a duty to cooperate in the registration of the transfer of ownership in the name of Dong Dong-dong, the defendant violated his duty and received the remaining price to Dong Jae-dong and ordered the building, thereby the defendant did not commit the crime of breach of trust.

However, in the first trial as cited by the court below, since the relationship between the breach of trust and the fraud and the breach of trust is one of the concurrent crimes, the entire judgment of the court below is reversed, and the case is remanded to the Busan District Court Panel Division, which is the court below, for a new trial and determination, it is so decided as per Disposition by the assent

Justices Shin Jong-sung (Presiding Justice)