[1] In a case where the Defendant purchased land jointly with Party A and entered into a sales contract for the land to be operated as a partnership business on the ground, and subsequently, committed a breach of trust by completing the registration of ownership transfer in the name of a third party, the case holding that the lower court erred by misapprehending the legal principles, which held the victim of the breach of trust as “A,” not a partnership, which is a partner company

[2] In a case where an act of breach of trust or an occupational breach of trust causes property loss at the same time, and at the same time, an act of breach of trust or occupational breach of trust provides property interest to compensate for such loss (negative)

[3] In a case where the defendant purchased land jointly with Gap and entered into a sales contract for the land to be operated as a warehouse on the ground, and paid the down payment to the seller, and later, in a case where the defendant committed a breach of trust in the name of a third party, which completed the registration of ownership transfer under the name of Gap, the case holding that the judgment below erred in the misapprehension of legal principles as to the amount of profit earned by the defendant and the amount of damages suffered by the victim

[1] In a case where the Defendant purchased land jointly with Party A and entered into a trade contract for the land to be operated as a warehouse on the ground, and subsequently, entered into a new sales contract with Party A to exclude Party A while carrying out the registration of ownership transfer, and completed the registration of ownership transfer in the name of a third party, the case holding that the lower court erred by misapprehending the legal principles as to the victim of the crime of breach of trust on the ground that: (a) the Defendant and Party A entered into a partnership agreement under Article 703 of the Civil Act with the intent of two or more persons to make a mutual investment and operate a joint business; (b) the Defendant has a duty to manage the affairs with due care as a good manager with regard to the affairs such as the registration of ownership transfer of real estate (Articles 707 and 681 of the Civil Act); and (c) the Defendant is in the position of “person who administers the affairs of a partnership” as seen above, and thus, the victim should be deemed as a breach of trust with Party A by completing the registration of ownership transfer.

[2] In the crime of breach of trust or occupational breach of trust, the term "where a property loss is incurred" includes not only a case where a real loss is incurred but also a case where a risk of actual loss of property has been caused, and the determination of whether a property loss has been inflicted shall be understood from an economic point of view, instead of a legal judgment. However, in a case where a property loss is incurred to a principal's property in general, i.e., where an act of breach of trust causing a property loss causes a decrease in the total value of the principal's property, i.e., where an act of breach of trust causing a property loss at the same time, and where there is no other property loss (the risk of actual loss or actual loss of property), it shall not be deemed that there is a decrease in the total value of property, i.e.,

[3] In a case where the defendant purchased the land jointly with Gap and entered into a partnership business agreement on the land that will operate warehouse business on the ground, and paid the down payment to the seller, and subsequently, entered into a new sales contract with the seller Gap which would cancel the above sales contract and exclude Gap, and completed the registration of ownership transfer in the name of third party, the case holding that the court below erred in the misapprehension of legal principles as to the amount of damages caused by the breach of trust as to property in the crime of violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes, on the ground that the purchase price for the land was reduced in the value of the land expected to be acquired in the future, but the victim's partnership could not be deemed as the amount of damages caused by the breach of trust, since the purchase price for the land could not be deemed as the amount equivalent to the profit earned by the defendant and the amount of damages suffered by the victim.

[1] Article 35 (2) of the Criminal Code, Articles 681, 703, and 707 of the Civil Code / [2] Articles 355 (2) and 356 of the Criminal Code / [3] Article 355 (2) of the Criminal Code, Article 3 (1) of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes

[2] Supreme Court Decision 2004Do7053 Decided April 15, 2005 (Gong2005Sang, 791), Supreme Court Decision 2004Do5742 Decided March 15, 2007 (Gong2007Sang, 569), Supreme Court Decision 2005Do4338 Decided June 15, 2007, Supreme Court Decision 2008Do1212 Decided August 20, 2009, Supreme Court Decision 2009Do6347 Decided January 28, 2010

Defendant

Defendant

Law Firm Gwangju (Attorneys Lee Jong-soo et al., Counsel for defendant-appellant)

Seoul High Court Decision 2009No2007 decided Dec. 2, 2009

The judgment below is reversed and the case is remanded to Seoul High Court.

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. As to the false accusation and false accusation

Examining the judgment of the court below and the evidence duly admitted by the court below in light of the records, it is justifiable to find the court below guilty of each of the facts charged for the reasons stated in its holding.

The court below did not err by violating the rules of evidence or by misapprehending the legal principles as to perjury and no accusation, as otherwise alleged in the ground of appeal, in selecting evidence or recognizing facts which belong to the exclusive jurisdiction of the court below as the fact-finding court.

2. As to the violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Misappropriation)

A. Comprehensively taking into account the various circumstances in its holding, the lower court determined that: (a) the Defendant entered into a trade agreement with Nonindicted Party 1 to jointly purchase the instant land and operate a logistics warehouse business on the ground; and (b) concluded a new sales agreement with the seller from the time when Nonindicted Party 1 was killed and wounded, to cancel the initial sales contract for the instant land and exclude Nonindicted Party 1; and (c) concluded a new sales agreement with the seller from the time when the permission to establish a factory was made for the instant land; and (d) concluded a registration of ownership transfer in the future with Nonindicted Party 3, his father, who was operated by the Defendant on the instant land; and on such premise, rejected the Defendant’s assertion that there was no agreement with Nonindicted Party 1 on the instant land; and (e) rejected the Defendant’s assertion that the said registration of ownership transfer was made through a contract title trust; and even if the first sales agreement to purchase the instant land as business property was for the land within the land within the land zone subject to the land transaction permission zone, such circumstance alone does

Examining the judgment of the court below and the evidence duly adopted by the court below in light of the records, the above fact-finding and judgment of the court below are justified.

As alleged in the ground of appeal, the court below did not err by violating the rules of evidence or by misapprehending the legal principles on title trust and land transaction permission, thereby affecting the conclusion of the judgment.

The ground of appeal on this part is without merit.

B. However, the prosecutor prosecuted the victim of the instant breach of trust as Nonindicted 1, and the lower court also recognized Nonindicted 1 as the victim.

However, according to the above facts acknowledged by the court below, the defendant and non-indicted 1 agreed to make a joint investment and operate a joint business, and they concluded a partnership agreement under Article 703 of the Civil Act, and the defendant has a duty to manage the business with the due care of a good manager to the partnership, which is the business entity (Article 707, Article 681 of the Civil Act). Thus, even though the defendant is in the position of "person who administers the business of the partnership", he shall be deemed to have performed the act of breach of trust against the partnership by completing the registration of ownership transfer as above in violation of his duty.

In addition, the court below recognized that the defendant suffered property loss equivalent to KRW 879 million, which is the purchase price of the land in this case, due to the above breach of trust, and decided the defendant as the crime of violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Misappropriation) on the basis of the above amount.

However, the crime of breach of trust or occupational breach of trust includes not only a case where a real loss is incurred but also a case where a risk of actual loss of property has been caused, and the judgment of whether a property loss has been inflicted shall be understood from an economic point of view, instead of a legal judgment. However, in a case where a property loss is caused by a person’s property status in general, that is, a case where an act of breach of trust that causes a property loss causes a decrease in the total value of the person’s property. Thus, in a case where an act of breach of trust that causes a property loss at the same time gives a pecuniary benefit to compensate for such loss, for instance, if the act of breach of trust corresponds to the benefits and consideration due to such act of breach of trust and there is no other property loss (the risk of actual loss or actual loss of property), it cannot be said that there is a decrease in the total value of property, namely, a property loss (see Supreme Court Decision 2004Do7053, Apr.

According to the facts duly admitted by the court below, on November 14, 2003, the defendant decided to purchase the land of this case between Non-Indicted 4 and Non-Indicted 5, the owner of the land of this case, and the contract deposit amount of KRW 100 million is paid on the date of the contract, and any balance is paid on the date of the contract, and the contract is concluded to pay the land of this case as a collateral. Of the down payment, the defendant and Non-Indicted 1 bears the above contract amount of KRW 20 million. The defendant, around April 14, 2004, concluded a new contract that excludes Non-Indicted 1, and paid the balance to the seller after borrowing the land of this case as collateral and paying the balance to the seller around June 29, 2005.

Examining these facts in light of the above legal principles, the injured party association reduced the assets corresponding to the value of the land of this case, which was expected to be acquired in the future due to the Defendant’s breach of trust, but on the other hand, exempted the obligation to pay the balance of the land of this case. Thus, as recognized by the lower court, the amount equivalent to the purchase price of the land of this case cannot be deemed as the property damages suffered by the association

Therefore, considering the above point, the court below should have determined whether there was a decrease in the overall property value of the union due to the defendant's breach of trust, i.e., the property damage, and further should have recognized the reduced property value as the property damage.

Nevertheless, the court below, on the premise that the victim was the non-indicted 1, recognized the amount of profit of the defendant and the amount of loss of the victim as the purchase price of the land in this case, and applied the defendant as the crime of violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Misappropriation). In this case, the court below erred in the misapprehension of legal principles as to the specific amount of loss of the victim and property

The ground of appeal pointing this out is with merit.

3. Scope of reversal

As seen earlier, there exists a ground for reversal of part of the facts charged in the instant case against the Defendant, and the remainder of the facts charged is a concurrent crime relationship under the former part of Article 37 of the Criminal Act and a sentence should be imposed. Accordingly, the lower court’s judgment cannot be reversed in its entirety.

4. Conclusion

Therefore, the judgment of the court below is reversed, and 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 on the bench.

Justices Yang Chang-soo (Presiding Justice)