[1] In a case where a contract is fully implemented due to the payment of an intermediate payment in a real estate sales contract, etc., whether the seller constitutes “a person who administers another’s business” as referred to in the crime of breach of trust (affirmative); and whether the seller, who is in such position, disposes of the real estate to a third party before transferring the ownership of the real estate to the third party according to the terms of the contract, constitutes a crime of breach of trust (affirmative)

[2] In a case where the Defendant, a real estate seller, entered into a sales contract with the buyer Gap, etc., received the down payment and the intermediate payment, sold real estate to the third party Eul, etc., and completed the registration of ownership transfer, and thereby was prosecuted for violating the former Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Misappropriation), the case holding that the lower court erred by misapprehending the legal principles as to "a person who administers another's business" and "a person who commits another's criminal intent" and "a person who commits another's criminal intent" and "a person who commits another's criminal intent" in the judgment below which acquitted the Defendant of the facts charged on the contrary,

[1] [Majority Opinion] In a real estate sales contract where only a down payment is paid, a party or a down payment may be set aside freely from the binding force of the contract by waiving the down payment or repaying the double payment. However, in a case where the contract is fully implemented, such as the payment of an intermediate payment, etc., the seller may not escape from the duty to transfer the ownership of the real estate to the buyer, unless the contract is revoked or rescinded. Therefore, the seller is in a fiduciary relationship in which the buyer cooperates in preserving the buyer’s property and protects and manages the pecuniary interest. From that time, the seller ought to be deemed to fall under the “person who administers another’s business” as referred to in the crime of breach of trust. The seller disposes of the real estate to a third party before transferring the ownership of the real estate in accordance with the terms and conditions of the contract, and completes registration following the disposal to a third party. This constitutes a crime of breach of trust

The reasons are as follows.

① The crime of breach of trust is established when a person in a fiduciary relationship who shall protect and manage another person’s pecuniary advantage commits an act in violation of trust, thereby infringing on another person’s pecuniary advantage. Whether a fiduciary relationship protected by the criminal law is established when a certain degree of trust has been formed between the parties in a fiduciary relationship; whether a certain form of act in breach of trust is recognized as a criminal breach of trust should be determined specifically based on whether the protection of another person’s pecuniary advantage was the typical and essential substance of a fiduciary relationship; whether the protection of another person’s pecuniary advantage was the typical and fundamental substance of a fiduciary relationship in consideration of the content and degree of performance of a contract; degree of binding force of a contract; transaction practice; type and content of a fiduciary relationship; degree of violation of trust; and whether the pertinent act is an incidental act to the degree that the involvement of criminal law can be justified. As such, in determining the scope of establishment of a crime of breach of trust, the duty of care should

② In the Republic of Korea, real estate is a foundation for the basic life of the people to form a foundation for economic activities, and real estate accounts for the most part of the value of property held by each citizen. As such, real estate is still a large portion of economic life and the socioeconomic meaning of transactions for this purpose.

③ The purchase price of real estate is usually paid in the form of a down payment, an intermediate payment, and an intermediate payment. If a buyer pays an intermediate payment to a seller, it becomes binding upon the buyer’s arbitrary rescission of the contract (see Article 565 of the Civil Act). However, even if the buyer pays the down payment and an intermediate payment to the seller, there is no universal and adequate means to prevent double sale of the seller. In such circumstances, the buyer is believed to complete the registration of ownership transfer and the intermediate payment is paid by the seller. In other words, the buyer pays an intermediate payment based on the trust that the seller will complete the registration of ownership transfer, and the intermediate payment is also paid based on such trust. Accordingly, from the stage of the intermediate payment, the fiduciary relationship in which the seller cooperates in the preservation of the buyer’s property becomes the typical and fundamental substance of the parties concerned. Furthermore, the seller in such fiduciary relationship falls under the category of “person who administers another’s business” as referred to in the crime of breach of trust. Furthermore, the seller’s intentional disposal of real estate to a third party prior to the buyer’s transfer of ownership constitutes an act of breach of trust.

④ In the case of double selling of real estate for a long time, the Supreme Court has consistently ruled that a seller has a duty to cooperate until the buyer completes the registration of ownership transfer in the future, and that a double transfer of the real estate for the purpose of double selling to a third party after the seller received an intermediate payment constitutes a crime of breach of trust. Such a legal doctrine has faithfully performed the role to restrain double selling of real estate and protect the buyer, and is still reasonable in light of the current real estate transaction situation in Korea. Such a legal doctrine does not cause distortion or confusion in the transaction of real estate, nor does it excessively restrict the seller’s freedom

[Dissenting Opinion by Justice Kim Chang-suk, Justice Kim Shin, Justice Jo Hee-de, Justice Kwon Soon-il, and Justice Park Jung-hwa] In a real estate transaction, the Majority Opinion is merely an interpretation of the principle of no punishment without the law, which is the major principle of the criminal law, by failing to comply with the trend of the Supreme Court precedents denying the establishment of the crime of breach of trust against the seller or the debtor in the case of double sale of movable property and the promise of accord and satisfaction of real estate, and thus, it is difficult to agree.

In light of the ordinary meaning of the language and text, “other person’s business” in the crime of breach of trust refers to the business that belongs to other person and the subject of the business must be the other person. In other words, the principal must handle the business that the other person should manage on his/her behalf. Furthermore, considering that the essence of the crime of breach of trust is in violation of the duty to protect the principal’s property interests arising from the internal relationship or the fiduciary relationship with the principal, thereby infringing on the other person’s property rights, the “other person’s business” within the above meaning should be handled on the basis of the fiduciary relationship, and the content of the business itself and the essential substance of the fiduciary relationship must be the protection and management of the other person’s property interests. Therefore, even if a party to the contract faithfully performs his/her duties in accordance with the terms of the contract, and even if the performance of such duties does not correspond to

In a case where a real estate sales contract is concluded, at the same time as a contract is concluded, the seller is obligated to transfer the ownership of real estate and the buyer is obligated to pay the purchase price. Such obligation of the seller or the buyer is only the “business of one’s own” according to the sales contract, and cannot be deemed to constitute “other’s business.” This is because a seller’s obligation to transfer the property right or a buyer’s obligation to pay the purchase price arises from a sales contract, and cannot be deemed to have been entrusted to the other party on the basis of a fiduciary relationship, and it cannot be deemed to have been a typical and fundamental substance of the sales contract. In a sales contract, the protection and management of the pecuniary advantage of the other party cannot be deemed to have been a typical and fundamental substance of the sales contract. The parties are in the opposite transaction relationship in which the other party should perform the consideration for the satisfaction of the contractual rights of each party. However, even if the seller has a duty to register as the seller or the buyer’s obligation to cooperate

If the seller is assumed to have a duty to cooperate in preserving the buyer’s property, the other party’s duty to cooperate in preserving the buyer’s property should be balanced in light of the essence of the bilateral contract. However, in a case where the buyer who first received the ownership prior to the payment of the balance fails to perform an agreement to obtain a loan by collateral and pay the balance for the purchase and sale of the real estate and set up a mortgage for other purposes, the court held that the Defendant, the buyer, is not subject to the crime of breach of trust. According to the Majority Opinion, in a bilateral contract based on the premise of guaranteeing equal legal status between the parties to the contract, there is no other explanation to regard the existence of a duty to cooperate in preserving the buyer’

In addition, according to the Majority Opinion, if a seller receives an intermediate payment from a second buyer, it shall be deemed that the seller has a fiduciary relationship in which the seller cooperates in preserving the property and protects and manages the pecuniary interest of the second buyer. However, in cases where the seller completed the registration of ownership transfer to a second buyer, the seller recognizes the establishment of the crime of breach of trust in relation to the first buyer, while in cases where the seller completed the registration of ownership transfer to the first buyer, the seller does not constitute the crime of breach of trust in relation to the second buyer even if the seller received the intermediate payment or the balance from the second buyer. There is no logical ground to distinguish the extent of protection in the establishment of the crime of breach of trust against the first buyer and the second buyer, who are obliged to be guaranteed equal legal status

Meanwhile, if a seller is deemed to be punished for a breach of trust on the ground that he/she has a duty to cooperate in preserving the buyer’s property, and that the seller falls under a “person who administers another’s business,” it is inconsistent with the Supreme Court’s holding

[2] In a case where the Defendant, a real estate seller, concluded a sales contract with Party A, etc. and received the down payment and the intermediate payment from Party A, etc., sold real estate to a third party, etc., and completed the registration of ownership transfer, and thereby was prosecuted for violation of the former Act on the Aggravated Punishment, etc. of Specific Economic Crimes (amended by Act No. 13719, Jan. 6, 2016), the case held that the sales contract was terminated at a certain stage when Party A, etc. paid intermediate payment to the Defendant pursuant to the sales contract, and the Defendant was a person in charge of the business of acquiring the ownership of real estate of Party A, etc., as he was under a fiduciary relationship to protect property interests, and that Party A et al. did not receive real estate even after the remaining payment date, and that Party A et al. did not accept the contract, and thus, it is difficult to view that Party A et al.’s act of selling real estate to Party A et al., which was not lawfully cancelled and thus, constitutes a breach of trust.

[1] Article 12(1) of the Constitution, Articles 1(1) and 355(2) of the Criminal Act, Article 565 of the Civil Act / [2] Article 355(2) of the Criminal Act, Article 3(1)2 of the former Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Amended by Act No. 13719, Jan. 6, 2016); Article 565 of the Civil Act

[1] Supreme Court en banc Decision 74Do2215 delivered on December 23, 1975 (Gong1976, 8956), Supreme Court Decision 83Do2057 delivered on October 11, 1983 (Gong1983, 1683), Supreme Court Decision 84Do1814 delivered on January 29, 1985 (Gong1985, 405), Supreme Court Decision 86Do112 delivered on December 9, 1986 (Gong1987, 180, 180), Supreme Court Decision 92Do123 delivered on December 24, 2012 (Gong1993, 661) decided on October 28, 2005, Supreme Court Decision 2007Do201498 delivered on December 24, 2017).

Defendant

Prosecutor

Attorneys Kim Jong-soo et al.

Seoul High Court Decision 2016No2860 decided February 23, 2017

The part of the judgment of the court below against the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Misappropriation) shall be reversed, and that part of the case shall be remanded to the Seoul High Court.

The grounds of appeal are examined.

1. Case summary and key issue

A. The major developments of the instant case are as follows.

(1) On August 20, 2014, the Defendant entered into a contract with the victims to sell KRW 1.38 billion underground floor △△△△△△△△ (hereinafter “instant real estate”) located in Geumcheon-gu Seoul ( Address omitted) (hereinafter “instant contract”). The Defendant received KRW 200 million on the date of the contract, intermediate payment of KRW 60 million on September 20, 2014, and KRW 580 million on November 30, 2014, and delivered the instant real estate to the victims by November 30, 2014, with payment of the documents necessary for the registration of ownership transfer as well as remainder payment of KRW 580 million.

(2) The Defendant received KRW 200 million on the date of the contract, and the intermediate payment of KRW 600 million on September 30, 2014 from the victims.

(3) On April 13, 2015, the Defendant sold the instant real estate at KRW 1.5 billion to Nonindicted 4 and Nonindicted 5 (hereinafter “Nonindicted 4, etc.”) and completed the registration of ownership transfer on April 17, 2015.

B. The instant facts charged purport that the Defendant’s above act constitutes a crime of violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Misappropriation). As to this, the lower court acquitted the Defendant of this part of the facts charged on the ground that it is difficult to deem that the Defendant is in the position of “a person who administers another’s business,” who is the subject of the crime of breach of trust, and it

C. The key issue of the instant case is whether the seller who sold the real estate constitutes a crime of breach of trust.

2. Whether a double selling seller of real estate constitutes a crime of breach of trust;

A. The crime of breach of trust under Article 355(2) of the Criminal Act is established when a person who administers another’s business commits an act in violation of his/her duty, thereby acquiring pecuniary advantage or causing a third party to obtain such benefit, thereby causing property loss to the principal. The essence of the crime of breach of trust lies in causing property loss to the principal. Therefore, in order to be a “person who administers another’s business” as the subject of breach of trust based on a fiduciary relationship, in light of the principle of trust and good faith, the act of protecting and managing another’s pecuniary advantage based on a fiduciary relationship that administers another’s business in an internal relationship with the other person should be a person in a position that serves as the quintent and fundamental substance of the relationship between the parties. Even if the process of the business is not necessary to only protect and manage another’s pecuniary advantage, where the nature of the business for the other person constitutes “a person who administers another’s business” (see, e.g., Supreme Court Decisions 2004Do6890, Mar. 25, 2005).

The term "act in violation of one's duty", which is an element of the crime of breach of trust, refers to any act in violation of one's 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 the good faith principle, or by performing an act that is expected not to perform as a matter of course, in light of specific circumstances, such as the content and nature of the business to be handled (see, e.g., Supreme Court Decision 9Do4

B. The binding force of a contract may be freely relieved of either party or a down payment at the stage of paying the down payment only at the real estate sales contract. However, in a case where the contract is fully implemented, such as the payment of the intermediate payment, etc., the seller cannot escape from the duty to transfer the ownership of the real estate, unless the contract is revoked or rescinded. Therefore, the seller is in a fiduciary relationship in which the buyer cooperates with the buyer in preserving the buyer’s property to protect and manage the pecuniary interest. From that time, the seller ought to be deemed to fall under the “person who administers another’s business” as referred to in the crime of breach of trust. The seller disposing of the real estate to a third party before transferring the ownership of the real estate to a third party according to the terms and conditions of the contract, and completed registration following the disposal to a third party. This is an act that interferes with the buyer’s acquisition or preservation of the real estate, and constitutes a crime of breach of trust (see, e.g., Supreme Court Decisions 74Do2215, Dec. 23, 1975).

C. The reasons are as follows.

(1) As seen earlier, the crime of breach of trust is established when a person in a fiduciary relationship that shall protect and manage another person’s pecuniary advantage commits an act in violation of trust, thereby infringing on another person’s pecuniary advantage. Whether a fiduciary relationship protected by the Criminal Act is established when a certain degree of trust has been formed between the parties in a fiduciary relationship; whether a certain form of act in violation of trust is recognized as a constructive breach of trust should be determined based on whether the protection of another person’s pecuniary advantage was the typical and fundamental substance of the fiduciary relationship; whether the act in question is a typical and fundamental substance of the fiduciary relationship; and whether the act in question is an incidental act to the degree that the involvement of the criminal law is justified, in determining the scope of the establishment of the crime of breach of trust. As such, in determining the scope of the crime of breach of trust, the crime of breach of trust as a penal provision does not fulfill the function of the crime of breach of trust; and thus, whether an individual’s property right is neglected.

(2) In Korea, real estate is a foundation for the basic life of the people to form a foundation for economic activities, and most of the property values held by each individual citizen occupy real estate. As such, the proportion of real estate life in the economic life and the socioeconomic significance of real estate transactions for this purpose is still large.

(3) The sale price of real estate is divided into a down payment, an intermediate payment, and an intermediate payment. If a buyer pays an intermediate payment to a seller, it becomes binding upon the buyer’s arbitrary rescission of the contract (see Article 565 of the Civil Act). However, even if the buyer pays the down payment and the intermediate payment to the seller, there is no universal and adequate means to prevent double sale of the seller. In such circumstances, the buyer is believed to complete the registration of ownership transfer and the intermediate payment is paid by the seller, and the buyer is aware that the intermediate payment is paid based on the seller’s trust that the seller will complete the registration of ownership transfer, and the intermediate payment is also paid based on such trust. Accordingly, from the stage of the intermediate payment, the fiduciary relationship in which the seller cooperates in the preservation of the buyer’s property falls under the typical and fundamental substance of the relationship between the parties. Furthermore, the seller in a fiduciary relationship falls under the “person who administers another’s business” as referred to in the crime of breach of trust. Furthermore, the seller’s intentional disposal of real estate to a third party prior to the buyer’s ownership transfer constitutes a breach of trust.

(4) In the double selling of real estate for a long time, the Supreme Court has consistently held that a seller has a duty to cooperate until the buyer completes the registration of ownership transfer, and that if a seller double transfers the real estate for the purpose of double selling to a third party after the seller received an intermediate payment, the crime of breach of trust is established (see Supreme Court Decisions 74Do2215, Dec. 23, 1975; 83Do2057, Oct. 11, 1983; 84Do1814, Jan. 29, 1985; 2005Do5713, Oct. 28, 2005; 2008Do3766, Jul. 10, 2008; 201Do1615, Jun. 30, 2011; 2015Do1617, Dec. 16, 2016>

D. Meanwhile, in the event that a real estate seller received an intermediate payment from a buyer and concluded a new sales contract with a third party and completed the registration of ownership transfer in the future of the third party, barring special circumstances, barring special circumstances, such as that the initial sales contract was lawfully rescinded or the sales contract was lawfully rescinded, and there was a justifiable reason to believe that the sales contract was lawfully rescinded, the seller has the criminal intent of breach of trust (see, e.g., Supreme Court Decisions 90Do153, Nov. 13, 1990; 2006Do1140, May 12, 2006).

3. The judgment of the court below

For the following reasons, the lower court reversed the first instance judgment convicting the Defendant of violating the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Misappropriation) and acquitted the Defendant.

A. In the case of double selling of real estate, even if the seller received intermediate payment from the buyer, it is difficult to regard the seller as a person who administers another’s business, the subject of the breach of trust, depending on specific cases.

B. The Defendant, a seller, received intermediate payments from the victims according to the instant contract, and it is difficult to deem that the sales contract was lawfully rescinded. However, considering the following circumstances, it is difficult to readily conclude that the Defendant was in a position of a person who administers another’s business in light of a fiduciary relationship with the victims at the time of double selling, or that the Defendant was in a position of a person who administers another’s business, or

(1) The victims entered into the instant contract for the purpose of running a restaurant in the instant real estate, and the Defendant was also aware of this.

(2) At the time of double selling, the Defendant was in a position where the victims cannot deliver the instant real estate to the victims due to a dispute with the lessee of the instant real estate, and the victims demanded a compensation agreement that is difficult to accept from the Defendant, and sought not to have ownership transferred until the conditions were accepted.

(3) Therefore, it is difficult to readily conclude that the Defendant and the victims maintained the trust, expectation, and trust relationship regarding the transfer of ownership under the instant contract, or that the Defendant had an obligation under the good faith principle to cooperate with the victims in acquiring ownership

4. Judgment of the Supreme Court

A. The reasoning of the lower judgment and the evidence duly admitted reveal the following.

(1) The Defendant entered into the instant contract with the victims, and received KRW 200 million on the date of the contract, and the intermediate payment of KRW 600 million on September 30, 2014. The Defendant was unable to return the instant real estate from the lessee even after the lapse of November 30, 2014, which was the remainder payment date, and did not deliver the instant real estate to the victims.

(2) On December 17, 2014, the victims were unable to receive the instant real estate even after the due date, and the Defendant sent a notice (hereinafter “instant notice”) to the Defendant on or around December 17, 2014. The contents of the notice are as follows: “The Defendant would cancel the instant sales contract and claim for down payment, intermediate payment, and special damages to the original state by December 31, 2014, without accepting the terms and conditions of the demand (i.e., deducting the amount calculated at the rate of KRW 202,50,000 to KRW 24,30,000 per each month during the three-month grace period).”

(3) On April 7, 2015, the victim non-indicted 6 told the Defendant, by telephone, to the effect that “the lawsuit with the lessee should be completed by the Defendant at the time of the transfer of ownership?” “The final objective of the instant notification is real estate sale and purchase, and once the agreement is concluded, the termination should be deferred and waiting once,” and “the victim non-indicted 6 is a person pursuing the actual interest, and at the time of the reversal of the sales contract, would have ever been done.”

(4) On April 13, 2015, the Defendant sold the instant real estate in KRW 1.5 billion to Nonindicted 4, etc., and completed the registration of ownership transfer on April 17, 2015.

(5) On April 14, 2015, after the Defendant had already sold the instant real estate to Nonindicted 4, etc., the Defendant stated that “I would see the fact that I would have sold the instant real estate to Nonindicted 6,” and that “I would like to see the fact that I would have sold the instant real estate to Nonindicted 4, etc.,” and the victim Nonindicted 6 stated that “I would like to see that I would not have sold the instant real estate,” and “I would like to transfer ownership to the next week, and I would like to see that I would like to return the amount received on April 15, 2015, and I would like to return it to Nonindicted 6, who refused to do so, that “I would like to say I would like to deduct the balance for the period that would have been set up until now as the condition of ownership transfer?”

(6) On April 21, 2015, the victims filed a lawsuit against the Defendant seeking refund of the purchase price, etc. and expressed their intent to cancel the instant sales contract by delivering a copy of the complaint.

B. Examining these facts in light of the aforementioned legal doctrine, the following determination is possible.

(1) When the victims paid part payments to the Defendant in accordance with the instant contract, the instant contract had reached an irrecoverable stage, and the Defendant was a person in a fiduciary relationship to protect the victims’ pecuniary interests, and was in charge of the acquisition of ownership of the instant real estate by the victims, who were the victims.

(2) The content of the instant notice is merely the purport of rescinding the instant sales contract if the victims urged the Defendant to accept the requirements, and it is difficult to deem that the instant notice contains the expression of intent to rescind the contract by itself.

(3) While the instant sales contract was not lawfully rescinded, the Defendant violated his duty based on the above fiduciary relationship with the victims, sold the instant real estate to Nonindicted 4, etc. and completed the registration of ownership transfer.

(4) Although the Defendant was unable to deliver the instant real estate to the victims due to the lessee’s failure to return the instant real estate at the time, and was given the horses regarding compensation for damages due to nonperformance, as long as the instant sales contract was not lawfully rescinded and effective, such fiduciary relationship cannot be deemed to have ceased to exist.

(5) Therefore, the Defendant’s act constitutes a breach of trust as an act of breach of trust in breach of trust with the victims. In addition, the instant sales contract was not lawfully rescinded at the time, and even if the Defendant believed that the instant sales contract was lawfully rescinded, it is difficult to view that there was a justifiable reason for that belief. Therefore, the Defendant’s intent to commit a crime of breach of trust and to obtain illegal gains is also recognized.

C. Nevertheless, the lower court acquitted the Defendants on the charge of violating the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Misappropriation) for reasons contrary to its stated reasoning.

Therefore, the judgment below erred by misapprehending the legal principles as to “a person who administers another’s business” and “a person who commits an offense, etc., thereby adversely affecting the conclusion of the judgment. The ground of appeal

On the other hand, the prosecutor appealed on the violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes, but did not state the grounds of appeal on this part in the petition of appeal or appellate brief.

5. Conclusion

Therefore, the part of the lower judgment against the violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Misappropriation of trust) is reversed, and that part of the case is remanded to the lower court for further proceedings consistent with this Opinion, and the Prosecutor’s appeal as to the remainder is dismissed. It is so decided as per Disposition by the assent of all participating Justices, except for a dissenting opinion by Justice Kim Chang-suk, Justice Kim Shin, Justice Jo Hee-de, Justice Jo Hee-de, Justice Kwon Soon-il, and Justice Park Jung-hwa

6. Dissenting Opinion by Justice Kim Chang-suk, Justice Kim Shin, Justice Jo Hee-de, Justice Kwon Soon-il, and Justice Park Jung-hwa

A. The gist of the Majority Opinion is that, although a real estate seller cannot be deemed to be “a person who administers another’s business” at the stage of paying down payment only, the real estate seller is in a fiduciary relationship in which the buyer protects and manages the buyer’s pecuniary advantage when the contract is fully implemented, such as the payment of intermediate payment, etc., and therefore, the seller of real estate in such position is in the position of “a person who administers another’s business.” It constitutes a crime of breach of trust since

However, the Majority Opinion is not only an interpretation of the principle of no punishment without the law, which is the major principle of criminal law, by reflecting only the necessity of punishment for protecting buyers in real estate transactions, or by expanding the meaning of the language and text to the disadvantage of the accused. Moreover, it is difficult to agree with the Majority as it does not coincide with the trend of the Supreme Court precedents denying the establishment of the crime of breach of trust against the seller of movable property and the debtor in the case

B. Although there are several objectives in criminal trials, it is the most important purpose to guarantee the human rights of the people including the defendant to the maximum extent possible. Various human rights protection provisions, including the principle of no punishment without law, stipulated in the Constitution and the criminal law, are the constitutional values that must be observed as historical products that have been acquired with the efforts and sacrifice of many people for a long time.

According to the principle of no punishment without the law, penal provisions shall be strictly interpreted and applied in accordance with the language and text, and it shall not be extensively or analogically interpreted to the disadvantage of the defendant (see Supreme Court Decisions 2012Do4230, Nov. 28, 2013; 2015Do8335, Dec. 21, 2017, etc.).

The principle of no crime without the law is naturally premised on the principle of clarity. In other words, the core contents of a crime and punishment are the provisions of a law in the formal meaning established by the legislative body, and furthermore, anyone can anticipate what the legal provision intends to punish and what punishment is, and the elements of a crime are clearly stipulated so that anyone can make a decision on his/her act accordingly. Therefore, the interpretation of a penal provision does not violate the principle of clarity without the law by examining the legislative purpose, overall contents, structure, etc. of ordinary people who have the ability to distinguish things and can find reasonable interpretation standards that can define or limit the types of acts that constitute the elements of a crime as a proper understanding and judgment (see Supreme Court Decision 2003Do3600, Nov. 14, 2003, etc.). Accordingly, the penal provision must be enacted in accordance with the principle of clarity, and it can be said that it conforms with the principle of no crime without the law only when it conforms to the principle of clarity.

In addition, the court should not easily include the necessity of punishment in criminal policy, the policy necessity to supplement the non-performance of civil remedies, the public opinion on criticism of the people, etc., in spite of the fact that it does not clearly correspond to the elements of criminal punishment.

C. As to the crime of breach of trust, Article 355(2) of the Criminal Act provides, “If a person who administers another’s business obtains pecuniary advantage or causes a third party to do so by doing so, thereby causing loss to the principal, the preceding paragraph shall also apply.” According to the above provision, the elements of the crime of breach of trust include “a person who administers another’s business,” “a person who violates one’s duty,” “an act in violation of another’s duty,” and “damage” as key elements. One of them should be clearly interpreted, and it should not be extensively interpreted or analogical interpretation.

(1) As to what is “an act in violation of one’s duty,” the Supreme Court precedents have widely defined “an act in violation of one’s duty” in the crime of breach of trust as follows: “The act in violation of one’s duty includes any act in violation of one’s trust relationship with the principal by failing to perform an act that is naturally expected under the provisions of law, terms of contract, or good faith principle in light of the content and nature of the business to be performed, or by doing an act that is anticipated not to perform as a matter of course, and thus, whether such an act is legally valid or not” (see, e.g., Supreme Court Decisions 94Do3013, Dec. 22, 1995; 2009Do7783, Oct. 29. 209). As such, the Supreme Court precedents have widely defined “an act in violation of one’s duty” in the crime of breach of trust. The abstract concept of “new rules” or “new relationship” is almost an abstract concept that can not be established as a contractual relationship between the other party and the party.

Therefore, the Majority Opinion states to the effect that the scope of the protection of another person’s property interests should be determined by normative judgment based on the nature of a fiduciary relationship where the protection of another person’s property interests has become a typical and fundamental substance of a fiduciary relationship in consideration of the content of a contract and its degree of performance, trade practice, type and content of a fiduciary relationship, degree of violation of trust, etc. The Majority states to the effect that a fiduciary relationship to which degree of trust between the contracting parties should be formed should be protected under the criminal law. However, the Majority states to the effect that the protection of one’s property interests should be determined by comprehensively taking into account the following: (a) whether the breach of trust in criminal law as a penal law fails to fulfill its function; and (b) what form of a fiduciary relationship should be seen as an act of violating one’s duty; and (c) what extent it can not be determined clearly; and (d) whether it can be determined arbitrarily by the court.

According to the facts acknowledged by the court below in this case, the defendant and the victims were faced with situations where it is difficult to achieve the purpose of the contract due to the lessee's rejection of the delivery of real estate, and there is a conflict between the termination method of the contract and the scope of compensation rather than the delivery of real estate or the transfer of ownership. However, in such a relationship, the majority opinion recognized the fiduciary relationship between the defendant and the victims for the transfer of ownership, thereby making it impossible to avoid such criticism.

(2) Meanwhile, in the crime of breach of trust, the Supreme Court held that the crime of breach of trust refers to a decrease in property value, which includes not only the case where the loss of property was caused but also the case where the risk of actual damage was caused, and even if the loss was not clearly determined, it does not affect the establishment of the crime of breach of trust (see, e.g., Supreme Court Decisions 2005Do3102, May 31, 2007; 2009Do3712, Jul. 23, 2009). Accordingly, the scope of the crime of breach of trust is broad. Accordingly, the scope of the application of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes, which prescribes a certain amount of profit equivalent to the loss itself as an aggravated element, may also be expanded.

If the concept of “a person who administers another’s business,” which is an element of the crime of breach of trust, should be strictly interpreted, it is more urgent to limit the possibility of the application of the crime of breach of trust and the risk of punishment for a person who is in serious danger.

(3) In light of the ordinary meaning of the language and text, “other person’s business” in the crime of breach of trust refers to the business that belongs to another person and the subject of the business must be the other person. In other words, the principal’s business should be dealt with on behalf of the other person. Furthermore, considering that the essence of the crime of breach of trust is in violation of the duty to protect the principal’s property interests arising from the internal relationship or the fiduciary relationship with the principal, thereby infringing on the other person’s property rights, the “other person’s business” within the above meaning should be dealt with based on the fiduciary relationship, and the content of the business or the essential substance of the fiduciary relationship must be the protection and management of the other person’s property interests. Therefore, even if a party to the contract faithfully performs his/her duty in accordance with the terms of the contract, and even if the other party gains profit from the satisfaction of the contractual rights, if the performance of

In a case where the transferor, in such a case where the transferor transferred a right of lease doublely, entered into an agreement with the transferor to deliver the leased object to the transferee (see Supreme Court Decisions 86Do811, Sept. 23, 1986; 90Do1216, Sept. 25, 1990); and where the transferor entered into an agreement with the third party to not dispose of real estate owned by himself/herself to the third party while promising to repay a monetary obligation, and the mortgage was created against the third party, the duty under such agreement (see Supreme Court en banc Decision 84Do2127, Dec. 26, 1984; 84Do2127, Dec. 26, 1984; 200Do3486, Apr. 28, 1987; 200Do3249, Apr. 26, 200).

D. In a case where a real estate sales contract is concluded, at the same time as a contract is concluded, the seller bears the duty to transfer the ownership of real estate, and the buyer bears the duty to pay the purchase price. Such duty of the seller or the buyer is only the “one’s own business” according to the sales contract, and cannot be deemed to constitute “other’s business.” This is because the seller’s duty to transfer the property right or the duty to pay the purchase price arises from the sales contract, and cannot be deemed to have been entrusted to the other party based on the trust relationship, and it cannot be deemed to have been the typical and fundamental substance of the sales contract. In a sales contract, the parties are only in the opposite transaction that the other party performs to pay the consideration for the satisfaction of their respective contractual rights.

Even if the assertion that the seller has a duty to cooperate in the registration of the seller, or that the buyer has a duty to cooperate in the affairs of acquiring the property, the essence of the “duty to cooperate” is nothing more than expressing the duty to transfer ownership. This same holds true. The Supreme Court has already interpreted the meaning of the “person who administers another’s business,” which is the subject of the crime of breach of trust, without giving a reasonable meaning to limit and interpret it based on the nature of the business, and where the performance of the obligation is both for the benefit of another person, the act of the debtor’s distribution may constitute a crime of breach of trust by extensively interpreting that the act of breach of trust may constitute a crime of breach of trust, and it shall be strictly bordered from the perspective of the principle of no crime of no punishment without law (Supreme Court en banc Decision 2008Do10479 Decided January 20, 201).

The majority opinion argues that when a contract is fully implemented due to the payment of intermediate payments, etc., the seller cannot escape from the duty to transfer the ownership of real estate to the buyer unless the contract is revoked or rescinded, the seller is in a fiduciary relationship in which the buyer cooperates in preserving the buyer’s property and protects and manages the buyer’s pecuniary benefits, and the seller should be deemed to fall under the “person who administers another’s business” as referred to in the crime of breach of trust. In other words, the seller has a duty to cooperate in preserving the buyer’s property.

However, as seen earlier, the seller’s obligation to transfer ownership of real estate cannot be seen as another person’s business. Such obligation to transfer ownership is an obligation existing from the time of conclusion of a sales contract until the contract becomes null and void or the performance of obligation is completed. There is no reasonable ground to deem that the nature of the seller’s obligation to transfer ownership has changed or the quintent and fundamental contents of the relationship between the parties who transfer ownership in return for the payment of the price has changed to the protection and management of the buyer’s property interests. The circumstance that the intermediate payment was made refers to the situation where the seller cannot exercise the right to rescind the contract without any separate compensation, i.e., the right to rescind the contract, which was reserved for both parties by the delivery of the down payment, or the seller’s duty to transfer ownership has changed to the buyer’s duty to transfer ownership from the original date, or the other party has changed to the buyer’s duty to pay for that duty. Ultimately, the Majority Opinion’s assertion that the seller’s obligation to transfer ownership has not changed to the buyer’s duty to cooperate with the buyer cannot be deemed to be unreasonable.

E. If the seller assumes that there is a duty to cooperate in preserving the buyer’s property, the other party’s duty to cooperate in preserving the buyer’s property is balanced in light of the essence of the bilateral contract. However, in a case where the buyer who first received the ownership prior to the payment of the balance fails to perform the agreement that the buyer would obtain a loan and pay the balance for the purchase and sale of the real estate as security before the payment of the balance and establishes a mortgage for any other purpose, the Supreme Court held that the crime of breach of trust is not established against the Defendant, the buyer, who is the buyer, and denied this determination (see Supreme Court Decision 2011Do3247, Apr. 28, 201). According to the Majority Opinion, there is no explanation from the bilateral contract premised on the guarantee of equal legal status between the contracting parties to the contract as to whether the seller and

In addition, according to the majority opinion, if a seller receives an intermediate payment from a second buyer, it shall be deemed that the seller has a fiduciary relationship in which the seller cooperates in preserving the property and protects and manages the pecuniary interest of the second buyer. However, in cases where the seller completed the registration of ownership transfer to a second buyer, the seller recognizes the establishment of the crime of breach of trust in relation to the first buyer, while in cases where the seller completed the registration of ownership transfer to the first buyer, it shall be deemed that the seller does not constitute the crime of breach of trust in relation to the second buyer even if he received the intermediate payment or the balance from the second buyer (see, e.g., Supreme Court Decisions 86Do112, Dec. 9, 1986; 92Do123, Dec. 24, 1992; 2008Do11722, Feb. 26, 2009).

The Majority Opinion has changed the obligation of ownership transfer registration, which is a mere one’s own business, into another’s business by using the commission concept of the obligation to cooperate in registration or to cooperate in the preservation of property, which is limited only to the possibility of criticism or the necessity of punishment for double selling of real estate, thereby hindering the distinction from the nonperformance that is not a crime under the current criminal law and unfairly expanding the scope of application of the crime of breach

F. Meanwhile, as the majority opinion states, if a seller is deemed to have a duty to cooperate in preserving a buyer’s property and thus, can be punished for breach of trust as it constitutes a seller’s “person who administers another’s business”, this is contrary to the Supreme Court’s ruling in a double selling of movable property. In other words, the Supreme Court clearly states that, in the case of a sales contract where one of the parties agrees to transfer the property rights to the other party and the other party agrees to pay the price, the obligation the other party owes to perform in accordance with the terms and conditions of the contract constitutes “one’s own business,” barring any special circumstance, barring any special circumstance, the seller shall complete the performance of the contract by transferring the ownership of the subject matter in accordance with the terms and conditions of the contract, and the buyer acquires the right to the subject matter. Thus, inasmuch as the seller is not obligated to cooperate separately in protecting or managing the subject matter, the movable property sales contract does not have a position to deal with the buyer’s business, and thus, even if the seller disposed of the subject matter without delivering it to the other buyer, the seller, it does not constitute a breach of trust (see Supreme Court en banc.

In applying such a legal doctrine, there is no reason for difference depending on whether the subject matter of a contract is a real estate or movable property. There is no difference in that the principal obligation of a seller under a sales contract, regardless of whether the subject matter of a contract is a real estate or movable property, is the transfer of ownership to the subject matter of a sale in return for the payment of the purchase price, and the legal structure is the same in that the change in the right to the subject matter of a sale takes place by an agreement between the parties and the method of public announcement.

G. Nevertheless, there is a difference in that real estate is publicly announced by registration. However, even in the case of real estate, the Supreme Court held that, in the case of real estate already sold to a third party without transferring the real estate that the debtor, who entered into an accord and satisfaction promise for the purpose of collateral security, to the creditor, the debtor is not in the position of “a person who administers another’s business” (Supreme Court en banc Decision 2014Do3363 Decided August 21, 2014). However, even in the case of an accord and satisfaction promise, the case of double selling of real estate is not completely different from that of the case of the instant case in which the defendant failed to implement the procedure for ownership transfer registration in that he/she did not perform his/her duty to perform the procedure for ownership transfer registration, in view of the principle that the same should be treated differently.

H. The Majority Opinion has the reason to treat double selling of real estate differently from double selling of movable property, in view of the property characteristics of real estate and the importance of social and economic significance of real estate transactions, practices in which real estate sales proceeds are paid divided into ordinary down payment, intermediate payment, and balance, and the transaction reality where sufficient measures are not provided to prevent double selling of real estate even if the down payment and intermediate payment are paid, and there is no need to prevent such double selling of real estate from committing a crime of breach of trust.

However, such attitude is not only a desirable way of statutory interpretation, but also is contrary to the principle of no crime without the law. Moreover, even if an intermediate payment was made, it is difficult to view that the seller’s obligation to transfer ownership has changed from the buyer’s business to the buyer’s business, or that the typical and essential contents of the relationship between the parties have changed to the protection and management of the buyer’s property interests.

I. There is a long term legal term that the contract should be complied with. There are many legal relations on such legal principles. The role of the court is not only to protect the parties asserting that the contract should be complied with in compliance with the parties intending to not abide by the contract. In a real estate sales contract where the seller seeks not to perform the contract and asserts that the buyer should perform the contract, the court may order the seller to perform the contract by protecting the buyer who is obliged to perform the contract, or to compensate for damages for the nonperformance. The role of the court is even the role.

The Majority Opinion, when dealing with the issue of nonperformance under civil law, intervenes in the matter of punishment by the state, and further, attempts to punish nonperformance as punishment by analogical interpretation or expanded interpretation, from the point of view of the principle of no punishment without the law. Nevertheless, the theoretical basis of the Majority Opinion is very insufficient or unreasonable.

In light of our constitutional order, it is not desirable to enforce the principle of private autonomy as a penal law before seeking a reasonable resolution of dispute by civil means in the area of economic activity between individuals under the control of the principle of private autonomy. Excessive intervention in the State’s penal authority is likely to infringe on individual freedom. There is no difference between the property value and importance of real estate, and the need to maintain stable real estate transaction by preventing double selling of real estate. However, most countries are blocking the possibility of double selling of real estate in support of institutional devices, such as promoting notary public system. However, in the meantime, we only depend on the power means of criminal punishment, and there was no attempt for such autonomous resolution. In light of the economic growth and development of our society pursuing rationality and efficiency by respecting the autonomy in the private sector, and the maturity of citizen consciousness, it appears that the double selling of real estate can be sufficiently left to the market economy order, and it is reasonable to reduce the involvement of the State’s penal authority. The Majority Opinion’s efforts to protect human rights, which has led to the establishment of the principle of no punishment without law.

As above, we express our dissent with the Majority Opinion.

7. Concurrence with the Majority by Justice Park Sang-ok and Justice Kim Jae-hyung

A. Penal provisions shall be strictly interpreted and applied in accordance with the language and text, and they shall not be interpreted or expanded to the disadvantage of the defendant without permission. However, in the interpretation of penal provisions, a teleological interpretation that takes into account the legislative intent and purpose, legislative history, etc. of the relevant law shall not be excluded unless it goes beyond the ordinary meaning of the text and text of the law (see, e.g., Supreme Court Decisions 2007Do2162, Jun. 14, 2007; 2009Do1332, May 13, 2010).

A certain degree of the elements of a penal provision cannot be uniformly determined, and a comprehensive determination shall be made by taking into account the specificity of individual constituent elements and the circumstances causing legal regulations or the degree of punishment. Even if the elements of a penal provision are somewhat broad and certain to a certain degree of supplementary interpretation required by judges, it is difficult to deem that the mere fact is contrary to the demand for clarity required by the Constitution, insofar as there is no possibility of multi-level interpretation at the application stage (see, e.g., Constitutional Court en banc Decision 2001Hun-Ga27, Apr. 25, 2002; Supreme Court Decision 2004Do810, Jul. 9, 2004). In a case where a penal provision uses the concept that requires complementary interpretation of judges, reasonable interpretation criteria to determine or limit the types of acts constituting the elements of a penal provision by examining the legislative purpose, overall contents and structure of the penal provision, etc. are natural duties of judges who interpret and apply the law, and are not contrary to the principle of no punishment without law.

B. Article 355(2) of the Criminal Act on the crime of breach of trust provides that the crime of breach of trust is established when a person who administers another’s business obtains pecuniary advantage or has a third party obtain such benefit by committing an act in violation of his/her duty, thereby causing loss to the principal. In addition, the requirement is not simply applied to a criminal act, but rather to be determined by a judge through interpretation of the elements of the crime. “a person who administers another’s business,” “a person who administers another’s business,” “a person who violates one’s duty,” “a person who administers another’s business,” “a person who does so in violation of one’s duty,” and “damage,” such as “property benefit” and “damage,”

C. The essence of the crime of breach of trust is to inflict property damage on another person by doing an act in reliance on the trust relationship. The Supreme Court has established an interpretation standard on the elements of the crime of breach of trust on the basis of the essence of the crime of breach of trust. The Supreme Court has recently established the interpretation standard on the elements of the crime of breach of trust. The Supreme Court also held that the intrinsic substance of the relationship between the parties is required to protect or manage another person’s property based on the trust relationship, and that “an act in violation of one’s duty” is an act in breach of a trust relationship with the principal by failing to perform an act that is naturally expected to be done in accordance with the provisions of statutes, the content and nature of the contract,

The Dissenting Opinion, without presenting a specific standard of interpretation as to what constitutes the act of breach of duty, has widely defined the act of breach of duty by using the abstract concept of good faith or trust relationship. The Majority Opinion, which states that the elements of breach of duty should be determined on a normative basis, has discharged the contents of the act of breach of duty into an ambiguous concept that cannot be determined remarkably.

However, the Dissenting Opinion is unreasonable. As seen above, individual constituent elements of the crime of breach of trust are normative constituent elements that can not determine the exact meaning or scope thereof only by means of prior and formal meaning. The interpretation of the elements of the crime of breach of trust by using the normative and somewhat abstract concept, which is the principle of good faith or trust relationship, is to ensure that the types of business process at issue in reality are diverse, and the content of business process varies depending on the performance stage or situation. As such, in interpreting penal provisions, the duty to be performed for the principal can be determined by taking into account the nature of the business and the specific circumstances. There are no grounds for using only clear and reasonable concept to the extent that the interpretation by a judge is unnecessary in interpreting penal provisions. Considering that the crime of breach of trust itself is committed in violation of trust arising from a fiduciary relationship, it accords with the literal interpretation that the act of breach of trust is an act of infringing on another’s property interests. Therefore, it is natural to interpret that “a person who administers another’s business” in the crime of breach of trust is a person who protects and manages another’s property based on a fiduciary relationship that

Of course, the crime of breach of trust is not an offense seeking to punish all violations of trust arising in social life. It is unreasonable to apply the crime of breach of trust to simple nonperformance in all types of contracts. Therefore, the concept of “other person’s business” need to be narrowly interpreted. Accordingly, the Supreme Court has restricted the establishment of the crime of breach of trust by stating that “the typical and fundamental contents of the relationship between the parties exceed the obligations under the trust relationship and protect or manage another person’s property based on the trust relationship among them,” which is in excess of the mere obligation under the trust relationship.” The Supreme Court has applied such legal doctrine to specific cases related to the breach of contract, such as the content of the contract and its degree of implementation, degree of binding force of the contract, transaction practice, type and content of the transaction, and degree of violation of trust, etc. In light of the content and degree of the contract, the degree of trust relationship to be protected under the criminal law should be determined in a normative manner. As to the criteria and method of such interpretation, it cannot be understood that the Dissenting Opinion expressed an ambiguous concept of breach of trust for any reason.

D. The Dissenting Opinion argues that, among the constituent elements of the crime of breach of trust, the term “other’s business” refers to the business that belongs to other person and is to perform on behalf of other person, and it is merely “one’s own business” and thus cannot be established.

However, as the nature of “other’s business” and “one’s own business” can not be clearly marked as if they were in the future. The Supreme Court did not determine whether the type or nature of business, or the type of contractual obligation or the form of a contractual obligation in the case of contractual relationship, constitutes “a person who administers another’s business,” but determined on the basis of whether the essential substance of the obligation is to protect and manage another’s property. It can be understood that the literal interpretation of the elements for the crime of breach of trust is difficult to determine “a person who administers another’s business.” The meaning of “a person’s business” is attributable to another person, and there is no ground for limited interpretation to handle another’s business on behalf of the latter.

It is not easy to determine whether a certain business is a “other person’s business”, “one’s own business”, or “business for another person”. For example, the Dissenting Opinion is a “other person’s business” in the context of handling affairs entrusted by a mandatory according to a delegation contract without any particular opinion on deeming that a “other person’s business” is “a person’s business” in the context of handling affairs entrusted by a delegating person, but it is also a “self’s business” in the context of handling affairs inherent to obtain

The act of transferring the ownership of the real estate in accordance with a real estate sales contract can be deemed as a seller's own business as a seller's obligation, but it is also the buyer's business in terms of acquiring the property from the buyer's position. Therefore, at a certain stage of performance, the seller's obligation to transfer ownership has the character of important and essential business to preserve the buyer's pecuniary interests in the real estate.

In accordance with the contents and nature of the transactional relationship and transaction practices, there are cases where another person’s business is his/her own business and business, and it does not necessarily mean that another person’s business cannot be a business solely on the grounds that it is a pro rata transactional relationship discussed by the Dissenting Opinion. The Supreme Court has the duty to pay the pre-paid amount to the designated fraternity if the pre-paid share holder collects the pre-paid amount from the pre-paid members (see Supreme Court Decision 2009Do3143, Aug. 20, 209). In such a case, the pre-paid duty is to handle the affairs of the pre-paid members at the same time as the pre-paid one’s own business and the pre-paid one’s business, and even if the pre-paid share holder did not pay the pre-paid amount from the pre-paid members, the pre-paid duty is established not only in the case where the pre-paid share holder violated his/her duty but also in the case where he/she did not pay the pre-paid amount to the designated fraternity.

From this point of view, the Dissenting Opinion’s argument that denies the case of another person’s business at the same time as his/her own business can be clearly divided into his/her business and other person’s business is merely a formal interpretation that does not reflect the substance of various kinds of transactional relationships conducted in the real world.

Whether a person who administers another’s business is a person who protects and manages another’s pecuniary advantage based on a fiduciary relationship depends on whether it constitutes a typical and fundamental content of the relationship between the parties, and whether the nature as a business for the other person constitutes an important substance beyond an incidental and surrounding meaning. Furthermore, in any case, a person who administers another’s business shall comprehensively take into account the general public’s understanding and judgment, such as the content and nature of the transaction relationship, transaction practices, etc. as a whole.

E. The Dissenting Opinion argues that the obligation to implement the procedure for ownership transfer registration falls under “the seller’s own business” under the agreement, not “the buyer’s business” but “the buyer’s business”, and that even if the intermediate payment was received, its nature does not change from the parties’ typical and essential content.

However, such attitude is difficult to agree because the seller and the buyer’s fiduciary relationship arising from the real estate sales contract are merely understood as the performance of a civil contract. The recognition of the crime of breach of trust in respect of double selling of real estate is not merely a contractual nonperformance that did not transfer the ownership of the real estate in accordance with the sales contract. Under the joint application principle on real estate registration, the seller intentionally lacks trust and makes the buyer impossible to acquire the ownership of the real estate in spite of the seller’s duty to cooperate in the procedure of registration of real estate as the other party to the transaction. In ordinary real estate sales contract’s substance or transaction’s practice, a fiduciary relationship cannot be deemed to be established against the buyer at the stage of the conclusion of the real estate sales contract. However, once the seller enters the stage of the principal performance, such as faithfully performing the duty stipulated in the sales contract, the seller’s duty to preserve and manage the ownership of the real estate for the purpose of acquiring the buyer’s ownership, namely, the duty to protect the buyer’s pecuniary interests, which is, the seller’s fiduciary relationship, even if having reached such a position.

Although the Supreme Court does not recognize a fiduciary relationship at the stage of concluding a contract in another type of contract, the fiduciary relationship between the contracting parties is deemed to be formed when the contract is implemented at a certain stage of contract. Supreme Court Decisions 2009Do3143 Decided August 20, 2009; 93Do221 Decided March 8, 1994, etc., supra, are applicable.

In this respect, punishing double selling of real estate as a crime of breach of trust cannot be deemed to contravene the purport of Article 11 of the International Covenant on Civil and Political Rights, which provides that “The punishment for double selling of real estate shall not be detained on the ground of impossibility of performing the contractual obligation.” The punishment for an act causing nonperformance of the contractual obligation cannot be deemed to be merely “compacting on the ground of impossibility of performing the contractual obligation.” Although it should not be avoided to intervene in the private sector, it cannot be readily concluded that the punishment cannot be punished as a crime of breach of the principle of no punishment without the law or abuse of the State’s penal authority, on the ground that it constitutes nonperformance of the contractual obligation. Ultimately, property crime has a similar aspect, and what act the penal authority may intervene, not civil law, but criminal law or special criminal law.

The following attitude of the Supreme Court regarding fraud, which is a property crime, may be deemed to be in the same context. Generally, there may be somewhat exaggeration or falsity in commercial transactions and there may be no deception as long as it may be acceptable in light of the general commercial transaction practices and the good faith principle. However, in a case where specific facts about important matters in a transaction are falsely notified in a manner to the extent to be criticized in light of the duty of good faith and good faith, it constitutes deception in fraud (see, e.g., Supreme Court Decision 2002Do4378, Oct. 11, 2002). If, as a understanding and judgment of the general public, the exaggeration or falsity accompanied by a transaction cannot be caused in light of the commercial practices and the good faith principle, it constitutes deception in fraud from a criminal perspective from a perspective of criminal law, as it falls under deception in light of the general public’s understanding and judgment, and in light of the transaction practices and the good faith principle, it also constitutes an act of breach of trust from a criminal law perspective.

F. The Dissenting Opinion contradicts the Majority Opinion on the grounds of various cases, but it is difficult to accept any of the following.

(1) The Dissenting Opinion argues that, in the case of double selling of movable property, the crime of breach of trust is established in the case of double selling of movable property, and that the sale of movable property and the sale of real estate are transfer of ownership to the subject matter of sale, and that the change in rights to the subject matter of sale takes place through an agreement between the parties and a public announcement method, the legal structure is the same.

However, there is no inevitable reason to deny the establishment of the crime of breach of trust even with respect to double selling of movable property. As seen above, it is unreasonable to understand “new relationship” which can be deemed a conceptual element of the crime of breach of trust only from the perspective of the type of civil obligation or the performance thereof. There is a significant difference between the sale and purchase of movable property and the sale of real estate in terms of ordinary transaction practices, expectations under the good faith principle, and whether the protection of another’s property interests has become the typical and fundamental substance of a fiduciary relationship depending on the course of transaction. Whether certain acts are infinites to the extent that the involvement of criminal law is justified, should be normatively determined depending on the substance thereof. However, it cannot be said that the outcome of normative judgment is the same as partial appearance of legal structure, such as the type of obligation under a contract or the elements of change in rights, etc.

(2) The Dissenting Opinion argues that the instant double selling case should be treated equally inasmuch as the instant case is identical in that the judgment on the reservation for payment in substitutes (Supreme Court en banc Decision 2014Do3363 Decided August 21, 2014) and the instant double selling case did not follow the procedures for ownership transfer registration.

The above judgment rejected the establishment of the crime of breach of trust on the ground that the ultimate purpose of the promise for payment in kind is to secure the repayment of the borrowed amount and the obligor’s obligation to perform the procedure for the registration of ownership transfer is incidental to the achievement of the purpose of the promise for payment in kind, and thus, the establishment of the crime of breach of trust was denied on the ground that the obligor does not fall under the business of another person in breach of trust. The essence of the relationship between the parties who entered into the promise for payment in kind is “payment” through the substitute. On the other hand, the essence of the relationship between the parties is to acquire the right to a specific real estate and to cooperate with the seller. As such, it is natural that

(3) The Dissenting Opinion argues that the establishment of the crime of breach of trust is denied by the precedent regarding the act that the real estate purchaser who acquired the ownership prior to the payment of the balance fails to perform the obligation of the collateral loan under the agreement, and thus, the difference between the seller and the buyer in the duty of cooperation for the preservation of property.

However, such Dissenting Opinion argues that the essential difference between the obligation to pay money and the obligation to transfer property rights, which is the principal obligation of the real estate purchaser, is unreasonable. Generally, a person bearing the obligation to pay money is sufficient by delivering a certain amount of money in any form, and barring any special circumstance, no one bears any obligation with respect to the custody and management of the money itself subject to delivery, barring any other special circumstance. The obligation to pay money does not lead to nonperformance.

(4) The Dissenting Opinion argues that, in a case where a seller of double selling completes the registration of ownership transfer to the first buyer, deeming that the precedents do not constitute a seller’s breach of trust in relation to the second buyer is different from the first buyer and the second buyer’s protection without any logical basis.

However, even if the seller has the duty to receive the intermediate payment from the first buyer to cooperate in the registration of the transfer of ownership, it is closely related to the breach of the duty to cooperate in the registration of the transfer of ownership and to receive the down payment and the intermediate payment to the second buyer, and constitutes a commencement of the crime of breach of trust (see, e.g., Supreme Court Decisions 84Do691, Aug. 21, 1984; 2009Do1427, Apr. 29, 2010). Upon completing the registration of the transfer of ownership to the second buyer, the crime of breach of trust may be completed. However, if the seller received the down payment and the intermediate payment from the second buyer without the intention to complete the registration of the transfer of ownership to the second buyer, and then the seller has transferred the registration of ownership to the first buyer, the crime of fraud is established against the second buyer. Therefore, if the seller received the intermediate payment from the second buyer, it is not a matter of whether the crime of breach of trust against the first buyer or the second buyer is established, and the seller’s duty of trust.

G. In the event that the buyer faithfully performed the obligation to pay the price according to the sales contract, the seller is expected to faithfully perform the obligation to pay the price, and the seller has no right to rescind the sales contract, if the seller can choose at any time whether to perform the obligation by disposing of the real estate owned by him/her freely according to his/her choice, it would result in de facto nullifying the buyer’

The Republic of Korea recognizes the right to claim performance along with the right to claim damages for nonperformance. The right to claim performance is one of the important signs distinguishing between the continental legal system and the Anglo-American legal system. In the event that a seller disposes of real estate through an act of distribution, the view recognizing the efficient reversal of a contract or the view deeming that it would be sufficient to resolve the damage caused by money or the return of the purchase price in accordance with the termination of a contract by deeming it as a mere nonperformance, does not accord with the legal system of the Republic of Korea, which recognizes the right to claim performance as a principle remedy. According to such position, if the value of real estate is increased between the date when the buyer paid the intermediate payment and the date when the remainder payment is made by the date when the seller sells the real estate to a third party without any restriction, it is unreasonable to view

The resolution of the problem through damages, etc. is premised on the premise that the responsible person has sufficient financial capacity. However, there are many cases where the seller who committed such act of worship has no financial capacity, such as damages. This is because there are many cases where the seller faces economic difficulties. Furthermore, even if the seller has economic capacity, there may be cases where the seller conceals money received after the disposal of the real estate. Therefore, it is highly likely that the buyer’s right to claim for the return of the price or the right to claim for damages would not be useful in terms of substantial remedy for rights.

H. The Supreme Court precedents, like Korea, cannot be said to have binding force in the same way as that of the law. However, the precedents that have been accumulated for a long time have a normative effect, serve as a norm of judgment, and directly affect the people’s lives. Considering double transfer or double sale of real estate as an act of undermining a fiduciary relationship with the buyer, the attitude of the precedents that have been subject to criminal punishment by imposing a criminal sanction is coming back at the time when the Civil Code was in force. In other words, under the Civil Code, the precedents adopted the so-called principle of intention regarding the change in real rights, the act of double sale of real estate against the first buyer constitutes embezzlement. From January 1, 1960, the Civil Act, which adopted the so-called - called ---called ----called - which adopted the first - which adopted the principle of real right, has reached a stage in which the sales contract cannot be rescinded arbitrarily, and thus, the crime of breach of trust has been established as to the act of double disposal of real estate to a third party. The intrinsic nature of the crime and the crime of breach of trust is established.

As can be seen, changing a firm precedent that has a deep sense of a trade life between the society and the people may cause confusion and not contribute to the protection of the rights of the people. The essence of property transaction is the reasonable adjustment of conflicting interests that ought to be sought is the protection of the rights of the people. The Supreme Court should not be neglected to protect the rights of the people damaged on the ground of the protection of the rights of the people that have caused the damage. The reasonable ground or realistic necessity for changing the existing precedents that have punished double selling of real estate as a breach of trust

As above, I express my concurrence with the Majority Opinion.

8. Opinion concurring with the Dissenting Opinion by Justice Kim Chang-suk

A. The precedents regarding double selling of real estate, which the Majority Opinion intends to maintain, have the positive aspect of the interpretation that is faithful to the protection of buyers. On the other hand, through the final means of punishment, there is also a negative aspect that opening excessively wide the way leading to not only the seller’s freedom of contract, but also the infringement on the physical freedom. The Dissenting Opinion does not assert that the protection of buyers is unnecessary by emphasizing such negative aspects.

In interpreting the elements of a crime prescribed in the Criminal Act, one must not be absolute to the role of the Criminal Act, which guarantees the function and freedom of protecting legal interests, and the two functions must be maintained harmoniously. It shall not be interpreted excessively infringing on the other party’s freedom as a means to protect legal interests. Rather, the principle of interpreting the Criminal Act is the principle of interpreting the Criminal Act that, even if the protection of legal interests is somewhat insufficient, it shall not infringe on an individual’s freedom without any clear basis. This is the core ideology of the principle of no punishment without law supported by the Constitution.

B. Whether a person constitutes “a person who administers another’s business” as referred to in the crime of breach of trust should be determined on the basis of whether the protection and management of another’s pecuniary advantage is a person in a position which serves as the quintive and fundamental substance of the relationship between the parties in light of the content of the contract and the type and substance of the relationship in trust. Therefore, even though protection and management of another’s pecuniary advantage cannot be deemed the quintic and fundamental substance of the relationship between the parties, extended interpretation should not be made as a “person who administers another’s business” under the pretext that the nature of the business as a business for the other person administers important matters beyond the incidental and surrounding meaning. The fact that the pertinent business has an important meaning against the other party does not necessarily mean that the person who administers the business naturally creates a status to protect and manage the other party’s pecuniary advantage. Whether the other party

As stated in a delegation contract, a person who “a person who performs affairs delegated with the care of a good manager in accordance with the substance of delegation” (see Article 681 of the Civil Act) may be deemed as a person who is in a position which serves as a typical and fundamental substance of the relationship between the parties and who administers another’s affairs” in the crime of breach of trust in light of the content of the contract, type and content of the relationship of trust. A similar fiduciary relationship may be recognized in an employment contract or

On the other hand, under a real estate sales contract, “a party to a transaction agrees to transfer real estate to the other party and the other party pays the price thereof” (see Article 563 of the Civil Act), a seller who can become an object real estate at a higher price is to maximize his own interests by purchasing a lower price, and in this respect the buyer and the other party have conflicting interests. In addition, the buyer and the seller are not in a position of the typical and fundamental substance of the relationship between the other party. The buyer and the seller are not in a position of protecting and managing the other party’s pecuniary interests. The buyer’s obligation to pay the price and the seller’s obligation to transfer ownership on the object real estate is not for protecting and managing the other party’s pecuniary interests, but for acquiring the other party’s ownership or price. This is the same as at the time of the sales contract, and even thereafter. Nevertheless, the Majority Opinion recognizes the seller from the time of receiving the intermediate payment without recognizing the status of the other party’s typical and essential substance of the relationship between the parties.

C. In concluding a real estate sales contract, even if the buyer paid 10% of the purchase price as the down payment, the crime of breach of trust is not established. However, even in the case of double selling at that time, even if 10% of the purchase price was paid as the intermediate payment, and the seller paid 20% of the purchase price, it cannot escape from the binding force of the contract. Accordingly, the Majority Opinion states that a double selling is established upon the seller’s performance of contractual obligations. Ultimately, the freedom of termination of the contract of the seller is denied unless the seller is punished. This is true even in a case where a seller fully compensates for losses that may arise to the buyer. This is to allow not only the seller’s right to resolve the contract, but also the right to physical freedom is infringed in order to protect the buyer’s rights. In such a case, it is extremely doubtful whether intervention in the Criminal Act can be justified. It cannot be understood that the seller can no longer exercise the right to cancel the contract by receiving the down payment. This is because the seller’s right to dispose of the real estate is included in ownership (see Article 21).

D. In general, where a real estate sales contract is concluded, the buyer pays most of his/her property to the seller with the purchase-price. As such, even if the buyer paid a considerable amount of the purchase-price to the seller, the buyer is not subject to transfer of the ownership of the real estate purchased, and as a result, he/she was unable to receive a refund of the purchase-price, and thus, he/she suffers a serious loss. However, it seems to be based on the practical perception that there is insufficient protection of the buyer, such as compensation for damages.

If a seller does not have an intention or ability to transfer ownership from a buyer at the time of receiving the purchase price, but has received the purchase price such as down payment or intermediate payment, it would be possible to resolve a considerable portion of such concern by punishing the statutory penalty as more severe fraud than the breach of trust.

However, even in cases where the elements of fraud are not satisfied, the legal doctrine of the Majority Opinion is unreasonable in this respect to the interpretation of expanding the scope of coverage beyond the language and text of the elements of the crime of breach of trust to more firmly protect the legal interests of a purchaser who is one of the parties to a real estate sales contract, thereby seriously infringing the other party’s freedom of contract as well as the personal freedom. This is derived from the lusence of the principle of interpretation of the Criminal Act that, even if the protection of the legal interests is somewhat insufficient, it cannot infringe on an individual’s freedom without clear grounds for penal provisions. In light of the nature of a real estate sales contract, the protection and management of a purchaser’s pecuniary advantage of a lusent and fundamental substance of the relationship between the parties, and the interpretation that a real estate seller, who is not in a position that is a typical and fundamental substance of the relationship between the parties, constitutes “a person who administers another’s business” as referred

As above, I would like to point out the fundamental problems of the Majority Opinion’s legal doctrine.

Justices Kim Young-soo (Presiding Justice)