If a creditor who has completed the registration of ownership transfer of real estate for the purpose of securing a claim disposes of it to a third party before the maturity date (affirmative)

Article 355(2) of the Criminal Act

[Plaintiff, Appellant] Plaintiff 1 and 1 other (Law Firm Domin, Attorneys Park Jong-soo et al., Counsel for plaintiff-appellant)

Defendant

Prosecutor

Daejeon District Court Decision 2005No1361 Decided September 15, 2005

The non-guilty portion of the judgment of the court below shall be reversed, and that part of the case shall be remanded to the Daejeon District Court Panel Division.

The grounds of appeal are examined.

A creditor who has received a registration of ownership transfer of real estate for the purpose of securing a claim is obligated to repay his/her name to the debtor if the debtor repays his/her obligation by the due date, so if he/she violated his/her duty and disposes of it to a third party before the due date, the crime of breach of trust is established even if the debtor did not repay it by the due date (see Supreme Court Decision 92Do753 delivered on July 14, 19

According to the evidence duly adopted by the court below, the non-indicted 1 was established on June 12, 200 with the non-indicted 2 and the non-indicted 10 on the non-indicted 3's loan 10,000 won for the above non-indicted 2's loan 10,000 won and the non-indicted 2's loan 10,000 won for the above loan 10,000 won for the above non-indicted 2's loan 10,000 won to the non-indicted 10,000 won for the above loan 10,000 won for the non-indicted 10,000 won for the above loan 10,000 won for the non-indicted 2's loan 10,000 won for the above loan 10,000 won for the above loan 10,000 won for the defendant's loan 20,000 won for the above loan 10,000 won.

In light of the above legal principles and facts as seen earlier, the transfer for security was established to secure the above loan obligation against Nonindicted Party 1 with respect to the apartment of this case. The Defendant established the right to collateral security on the apartment of this case on November 2002 and used the loan amount of KRW 10,000,000 from Nonindicted Party 5 to borrow and use KRW 10,000 with respect to the apartment of this case in accordance with the above agreement that took place around November 202, and the payment period for the above loan obligation against Nonindicted Party 1 was extended until January 31, 203. Thus, the Defendant sold the apartment of this case to Nonindicted Party 7 at will before the said payment period reaches Nonindicted Party 7 and completed the registration for transfer of ownership constitutes the act of breach of trust under Article 355

On the other hand, the court below erred by misapprehending the time and contents of the above written oath made before September 2002, and misunderstanding the circumstance that the defendant borrowed KRW 10,00,000 from Non-Indicted 5 to use the apartment of this case as collateral in accordance with the agreement with Non-Indicted 1 and the payment period has been extended, and it was difficult for the defendant to dispose of the apartment of this case thereafter because Non-Indicted 1 did not perform the secured obligation until the payment period specified in the above written pledge includes the meaning of the execution of the security right, and thereby making it difficult to view the defendant's disposal of the apartment of this case as the act of breach of trust against Non-Indicted 1.

Therefore, the non-guilty part of the judgment of the court below is reversed, and that part of the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices.

Justices Lee Hong-hoon (Presiding Justice)