double transfer of standing timber not registered under the Standing Timber Act and the nature of breach of trust

The same white tree does not belong to any tree group subject to the application of the Standing Timber Act, and if it is traded independently from the land, it is recognized as a transaction by a nominal method, and the seller has a duty to cooperate in the implementation of a nominal method in the name of the buyer. If the seller sells twice forest land including the standing timber (dong white tree) already sold without implementing the above nominal method and completed the registration of ownership transfer, it cannot be exempt from the responsibility for the crime of breach of trust in relation to the standing timber buyer.

Article 355(2) of the Criminal Act

Defendant

Defendant

Gwangju District Court Decision 92No5 delivered on July 2, 1993

The judgment of the court below is reversed.

The defendant's appeal is dismissed.

One hundred-seven days of detention before the sentence of the original judgment after filing an appeal shall be included in the sentence of the first instance judgment.

The grounds of appeal are examined.

According to the timely evidence of the judgment of the court of first instance cited by the court below, the court below's decision that found the defendant guilty of the crime of this case is just and acceptable, and there is no error of law by misunderstanding the facts of evidence, such as the theory of lawsuit, or by misunderstanding the legal principles as to the subject of the crime of breach of trust.

However, in the case of double sale of standing timber which is not registered under the Standing Timber Act, a seller does not constitute a crime of breach of trust because it does not belong to a group of trees eligible for the application of the Standing Timber Act, and in the case of transaction independently from the land, it is recognized that the seller has a duty to cooperate in the implementation of a name-holder method in the name of the buyer. If the seller sells twice forest land including standing timber (in this case, the same white tree) already sold without implementing the above name-holder method and completed the registration of ownership transfer, it cannot be exempted from the liability for the crime of breach of trust in relation to the standing timber buyer.

In the same purport, the court below is correct that the defendant was liable for conviction, and it is not erroneous in the misapprehension of legal principles as to the crime of breach of trust.

There is no reason to discuss this issue.

However, according to the records, in this case where only the defendant appealed, the court below dismissed the defendant's appeal and did not add the number of days of detention after the appeal.

In accordance with Article 57 of the Criminal Act, detention days before sentencing shall be included in the period of detention, except in the case of statutory inclusion under Article 482 of the Criminal Procedure Act. As such, the judgment of the court below, which does not add up the days of detention at the court below, is erroneous in the misapprehension of law that affected the conclusion of the judgment due to erroneous application of the law, and thus, the judgment of the court below shall not be reversed. This case is deemed sufficient to directly render a judgment under Article 396 of the Criminal Procedure Act.

The summary of the grounds for appeal by the defendant is that the mistake of facts due to the violation of the rules of evidence and the determination of the punishment by the court of first instance is unfair, but according to the records, the fact-finding and the determination of the punishment by the court of first instance are acceptable

Therefore, the defendant's appeal is dismissed in accordance with Article 364 (4) of the Criminal Procedure Act, and one hundred-seven days out of the detention days prior to the sentence of the court below after filing an appeal in accordance with Article 57 of the Criminal Act shall be included in the sentence of the court of first instance. It is so decided as per Disposition by the assent

Justices Kim Jong-soo (Presiding Justice)