[1] Intention of breach of trust and method of proving it

[2] Whether a crime of breach of trust is established in case where a seller of a site agreed to remove a building on the ground before the expiration of the removal agreement after the expiration of the remaining removal agreement (affirmative in principle)

[1] Article 355 (2) of the Criminal Code / [2] Article 355 (2) of the Criminal Code

[1] Supreme Court Decision 2002Do4229 decided Jul. 22, 2004 (Gong2004Ha, 1480) / [2] Supreme Court Decision 81Do2278 decided Jun. 14, 1983 (Gong1983, 1105)

Defendant

Prosecutor

Suwon District Court Decision 2005No3264 decided Apr. 17, 2006

The appeal is dismissed.

The grounds of appeal are examined.

In general, the intention of the crime of breach of trust is established when it is combined with the awareness that the person who administers another's business would inflict property damage on the principal and that the intention of his or her or a third party's pecuniary gain is in violation of his or her duty. The subjective element of the crime of breach of trust (such as intention, motive, etc.) is that in a case where the defendant denies the criminal intent by asserting that he or she committed an act at issue in his or her own interest, it shall not be proved by the method of proving indirect facts having considerable relation with the intention due to the nature of the object, and what constitutes indirect facts having considerable relation should be determined by the method of reasonably determining the link of facts based on the detailed observation or analysis according to the normal rule of experience (see, e.g., Supreme Court Decision 2002Do4229, Jul. 22,

On the other hand, if the owner of a building site and a building on the ground agreed to remove the building on his own for the buyer within a certain period after receiving the remaining price and to complete provisional registration to preserve the third party's right to claim ownership transfer after receiving all the remaining price from the buyer, it shall be deemed that the seller's act constitutes a breach of trust in violation of the buyer's duty to exercise ownership transfer registration (see Supreme Court Decision 81Do2278, Jun. 14, 1983). However, if there are special circumstances, such as the seller's belief that it is possible to cancel the provisional registration and perform the duty to remove the building objectively by the due date of promising to remove the building, it shall be deemed that the intention of breach of trust is not recognized.

Examining the record of this case in light of the above legal principles, the defendant already requested a certified judicial scrivener to file an application for provisional registration to preserve the right to claim ownership transfer against the non-indicted building in the name of the victims before entering into the contract to sell the land of this case. Since the above building was not registered in the building ledger, the procedure for applying for provisional registration was delayed after the date of entering into the land sales contract with the victims. The non-indicted stated that the above provisional registration was "when the building was registered as a taxpayer of property tax on the above building, the defendant must make a provisional registration not to enter the seizure of other creditors while the defendant had already been registered in the future, and it was difficult for the defendant to have agreed that the defendant would have received the above provisional registration to cancel the provisional registration and to withdraw the intermediate payment under the name of the victims as the purchase price of the land of this case, and that there was an agreement between the non-indicted and the defendant to directly withdraw the above provisional registration and the intermediate payment to the non-indicted 400 million won before the expiration of the contract and the intermediate payment to be withdrawn.

Although the reasoning of the judgment of the court below is somewhat inappropriate, the judgment of the court of first instance is reversed and the judgment of the court below which acquitted the defendant on the ground that the defendant's act does not constitute a crime of breach of trust is eventually justifiable, and contrary to the allegations in the grounds of appeal, there is no violation of

Therefore, the prosecutor's appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Hwang-sik (Presiding Justice)