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The defendant is not guilty, and the summary of the judgment of innocence is publicly notified.
Reasons
On August 7, 2004, the Defendant entered into a contract to sell 1/2 shares out of 711 square meters of the land of Pyeongtaek-si in Gyeonggi-do to the victim E in the victim E’s house located in the U.S. sandbox, and received the payment of the purchase price on that day.
Since the Defendant received the purchase price pursuant to the above sales contract, there was a duty to implement the procedure for the registration of ownership transfer for 1/2 of the above land to the victim.
On May 3, 2012, the Defendant borrowed money from the Gyeongginam Fisheries Cooperatives, in violation of the aforementioned duties, and set up a collateral security worth of KRW 530 million with respect to the said land at Lwon District Court Pyeongtaek-dong, Gyeonggi-do, the maximum debt amount of which is KRW 530 million.
Accordingly, the defendant acquired property benefits equivalent to 260 million won and suffered damages equivalent to the same amount as the victim.
However, the Korean Criminal Code has a provision punishing a person who administers another's business as a crime of breach of trust "when a person who obtains pecuniary advantage or has a third party obtain it by doing an act in violation of his/her duties and thereby causes damage to the principal."
However, for the following reasons, it is difficult to view the real estate seller as “a person who administers another’s business” in the crime of breach of trust, and it is difficult to readily conclude that the seller breached his/her duty solely on the sole basis that the seller created a collateral
(1) The seller is in the position of “person who administers another’s business” from the time of receipt of the intermediate payment to the time of receipt of the intermediate payment for the reason that the seller is unable to cancel the sale of the intermediate payment at his/her own discretion, but the cancellation of the contract is not only legal cancellation, but also may cancel the agreement at any time.
(2) "Other persons" shall perform their duties for themselves.