When the crime of breach of trust is enforced for double sale of real estate.

Although the seller of the real estate has a duty to cooperate in the registration of ownership transfer in the future of the buyer, if the seller sells the same real estate to a person other than the buyer and completes the registration of ownership transfer, the obligation to transfer ownership to the first buyer is impossible, and thereby the first buyer is not able to acquire the ownership of the real estate. Therefore, in double sale of the real estate, the time when the registration of ownership transfer is completed in the second buyer's future.

Article 355(2) of the Criminal Act

Supreme Court Decision 66Do1543 delivered on December 20, 1966

Defendant 1 and one other

1. As to all the defendants

Attorney Lee Han-soo

Daegu District Court Decision 82No1070 Decided April 7, 1983

The part concerning Defendant 1 among the judgment below is reversed, and that part of the case is remanded to the Daegu District Court Panel Division.

The prosecutor's appeal against Defendant 2 is dismissed.

1. Defendant 1’s ground of appeal is examined.

(1) As to the part on breach of trust

(A) Although the seller of real estate has a duty to cooperate in the registration of ownership transfer in the future of the buyer, if the seller of the real estate sells the same real estate twice to a person other than the above buyer and completes the registration of ownership transfer, the obligation to transfer ownership to the first buyer is impossible, and thereby the first buyer is unable to obtain ownership of the real estate. Therefore, in double selling of the real estate, the timing of breach of trust in the second buyer’s future

According to the reasoning of the judgment below, the court below acknowledged that Defendant 1, on May 9, 1981, was the non-indicted 947-1 and 947-20 of the Daegu Dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong 69 households construction contract, constructed the above victim's construction amount to 3,790 meters of the above land development.

However, the purport of the above original adjudication is to recognize not only the above apartment site but also the building's breach of trust. Although it is apparent that the ownership transfer registration of the above building was not completed in the future of the Korea Land Development Corporation, the second transferee, even if based on the original adjudication itself, the above building is judged to have been completed, the above act of breach of trust including the above building is erroneous in the misapprehension of legal principles as to the time of the completion of the breach of trust due to double selling, and the judgment of the court below is difficult to maintain.

(B) In addition, this argument argues that Defendant 1 did not have the intention to commit a crime of breach of trust with respect to the double selling of the apartment of this case, and the defendant was only the representative director of the non-indicted corporation, and thus, the subject of the crime of breach of trust with respect to double selling of the apartment of this case is not the defendant. However, upon examining the evidence of the court below at the time of the court below, the above defendant's judgment that recognized the intent to commit a crime of breach of trust is acceptable, and the subject of the crime of breach of trust

(2) As to the violation of the Building Act

According to the records, since defendant 1 is recognized as being the owner of the apartment building of this case, the court below is just in taking measures against the above defendant against the crime of violating the Building Act as stated in its judgment, and there is no error of misapprehending the Building Act or recognizing facts without any evidence, such as the theory of lawsuit.

2. We examine the Prosecutor’s grounds of appeal as to Defendant 1.

According to the reasoning of the judgment below, the court below judged that Defendant 1 sold the apartment to the above victim at KRW 18,00,000,000 as the first unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit unit

However, even though the seller of the above apartment is not the above defendant but the non-indicted corporation, the defendant, as the representative director of the above company, has the duty to implement the registration procedure for transfer of ownership to the above apartment for the above victim, so if the above victim was damaged by the act in violation of his duty, the crime of breach of trust cannot be exempted (see Supreme Court Decision 82Do2595 delivered on October 10, 1984).

Ultimately, the lower judgment erred by misapprehending the legal doctrine on the subject of the crime of breach of trust, thereby adversely affecting the conclusion of the judgment, and thus, on this point is reasonable.

3. We examine the Prosecutor’s grounds of appeal as to Defendant 2.

According to the reasoning of the judgment below, the court below affirmed the judgment of the court of first instance which acquitted Defendant 2 on the grounds that there is no proof of a crime. According to the records, in examining the evidence cooking process conducted by the court below, the judgment of the court below is acceptable, and there is no error of misunderstanding the rules of evidence as alleged in the arguments.

4. Therefore, the part concerning Defendant 1 among the judgment below is reversed, and that part of the case is remanded to the court below, and the prosecutor's appeal against Defendant 2 is dismissed. It is so decided as per Disposition with the assent of all participating judges.

Justices Lee Lee Sung-soo (Presiding Justice)