Defendant

Prosecutor

Scargs

Attorneys Yu Jae-ju et al., Counsel for the defendant-appellant

Cheongju District Court Decision 2007Gohap235 Decided July 10, 2008

The prosecutor's appeal is dismissed.

1. Summary of grounds for appeal;

misunderstanding of facts or misunderstanding of legal principles [The loss or profit of the crime of violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes]

2. Determination

A. Summary of the facts charged

Since the Defendant, around June 17, 1997, at the 4-2 block of housing site development zone in Chungcheongnam-gu (hereinafter omitted), in order to build a new 478 household unit with “○○ apartment”, the Defendant was unable to secure funds while carrying out housing construction projects after obtaining approval of the housing construction project plan from the Cheongju market. On December 13, 1997, at the main office of the ○○○ Bank Co., Ltd. (hereinafter “damage Bank”) located in Yeongdeungpo-do, Yeongdeungpo-gu, Seoul (hereinafter “Seodong-dong,”) the Defendant was jointly and severally liable to pay KRW 4 billion to the 19 billion Housing Finance Co., Ltd., Ltd. (hereinafter “Defendant 1”) under the name of “contractor’s loan”, and around April 10, 1998, the Defendant was granted KRW 3 billion under the said 100,000,000,000 won to the 100,000 won Housing Finance Co., Ltd. (hereinafter “Korea Housing Credit Guarantee Fund”).

Around December 28, 1998, Samsung Life Insurance Co., Ltd. (hereinafter “Tsung Life Insurance”) located in Daejeon (hereinafter “Ssung Life Insurance”) agreed to obtain a loan of KRW 8.5 billion in total from Samsung Life Insurance twice, and as a security, with respect to the above apartment house KRW 101,01,000,000,000,000 for the first priority priority priority of the maximum debt amount and KRW 286 households in total from 101,00,000 to 107,000,000 (hereinafter “the apartment in this case”), with respect to the above apartment house, the sum of the maximum debt amount and KRW 10.2,00,000,000,000,000,000 and KRW 4.5 billion,000,0000,000,000,000,000 won, which was KRW 8.5,585,000,00.

B. Determination

(1) Comprehensively taking account of the evidence duly adopted and examined by the first instance court, even though the Defendant agreed to the affected bank at the time of receiving the money from the affected bank as the “contractor’s housing loan loan,” as collateral, to complete the registration of the establishment of the first neighboring ○○ apartment after the completion of the construction of the apartment, the Defendant would obtain a loan of KRW 8.5 billion from Samsung Life Insurance without obtaining the consent of the damaged bank after the completion of the construction of the apartment, and it can be recognized that the registration of the establishment of the first neighboring 286 apartment units among the 478 households of the apartment total apartment units was completed with Samsung Life Insurance.

(2) Determination of the amount of profit on property caused by breach of trust

(A) The crime of breach of trust under Article 355(2) of the Criminal Act is established when a person who administers another's business obtains pecuniary advantage or has a third party obtain it through an act in violation of one's duty and thereby causes loss to the principal. As long as there is a concern that the execution of property right is not possible or the risk of loss is recognized, the actual loss of property is not necessary until the amount of loss is determined. However, in the case of a violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Aggravated Punishment, etc. of Specific Economic Crimes) for the crime of breach of trust, the value of pecuniary advantage acquired through the crime is more than 50 million won or more than 5 billion won is part of the constituent elements of the crime, and the punishment for the crime is aggravated accordingly, in the application of this Act, the value of pecuniary profit acquired or the

(B) The prosecutor charged the Defendant for violating the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Misappropriation) on the ground that the amount of property damage of the damaged bank due to the Defendant’s creation and transfer of the first priority mortgage to the damaged bank with respect to the apartment of this case where the Defendant should set up the first priority mortgage to the damaged bank is equivalent to KRW 10.82 billion, which is the sum of the maximum amount of claim for the establishment of the mortgage over the title of Samsung Life Insurance, and that the total amount of KRW 8.5 billion borrowed from Samsung Life Insurance was the amount of profit of the

(C) If the seller completed the registration of establishment of a new mortgage to a third party after the sale of real estate, the amount equivalent to the secured claim in the registration of establishment of a new mortgage shall be deemed to be the profit acquired by the seller in breach of trust. However, unlike the sales contract under which the seller is obligated to transfer all of the real estate, if a person who is obligated to establish the first secured right concerning the real estate has established the first secured right to a third party as in this case, the total profit gained by granting the first secured right to a third party cannot be deemed to be losses or profit. Of the secured value of the secured right established at the time of setting the victim, the amount equivalent to the value of the first secured right to be infringed shall be deemed to be losses or profit, and if the remaining value remains after the establishment of the first secured right to a third party from the total value of the real estate as a whole, the amount of damages or profit of the apartment house shall be reasonably deducted from the amount of the secured claim at the time of establishment of the third party's highest profit or profit (the highest profit amount of the secured right to a third party).

(D) In the instant case, even if comprehensively considering the evidence such as a written agreement on credit transaction with a housing bank, Samsung Life Insurance Co., Ltd. submitted by the prosecutor, it is insufficient to recognize that the damage suffered by the damaged bank or the amount of profit earned by the defendant due to the defendant's breach of trust is at least five billion won, or at least five hundred million won, to which the crime of violating the Act on the Aggravated Punishment, etc.

(E) Rather, according to the record of the sale of ○○ apartment unit attached to the fourth examination protocol of the Defendant against the Defendant (Evidence No. 3763 of the Evidence No. 3763), even if the actual value of each of the apartment units of this case, such as the sale price of 101,818,00 won and the sale price of 101,00 won among the apartment units of this case, for which the right to collateral security was established for Samsung Life Insurance’s 101,818,00 won and the maximum debt amount of 42 million won and the sale price of 204, the same amount as the maximum debt amount of 204, which was established for the right to collateral security for each of the households of this case, exceeds the amount of the secured debt of Samsung Life Insurance’s 194,762,000 won and it is difficult to conclude that the presumption of sale of apartment units of this case was the total amount of 28.6 billion won and the defendant suffered from the loss of Samsung Life Insurance Fund’s or its collateral security interest.

In addition, even before the completion of the registration of establishment of a right to collateral security with Samsung Life Insurance, the Defendant repaid the principal amount of KRW 400 million out of the loans on April 10, 1998, principal KRW 300 million out of the loans on June 19, 1998, and principal KRW 150 million out of the loans on June 19, 1998. The injured bank demanded the establishment of a right to collateral security after becoming aware of the fact that the right to collateral security was established as stated in the facts charged in Samsung Life Insurance and demanded the establishment of a right to collateral security, and established a right to collateral security, until August 12, 2002, the Defendant requested the Korea Credit Guarantee Fund to recover the total principal amount of loans on December 13, 1997, the Defendant and the Korea Credit Guarantee Fund to recover the principal amount of loans on April 10, 1998, and the Bank did not request the Defendant to recover the total amount of loans on June 20, 2001.

(F) However, in the case of the crime of breach of trust, the term "if a loss is inflicted on the principal" means a decrease in property value, which includes not only the case of causing property loss but also the case of causing the risk of causing actual damage (see, e.g., Supreme Court Decisions 81Do2501, Nov. 9, 1982; 89Do2281, Apr. 24, 1990; 2007Do9328, Mar. 27, 2008).

Therefore, unlike the initial agreement, the defendant's act does not constitute a violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Misappropriation) but constitutes a crime of breach of trust under the Criminal Act, since the defendant's act did not constitute a crime of violation of the Aggravated Punishment, etc. of Specific Economic Crimes (Misappropriation) because it did not constitute a crime of breach of trust under the Criminal Act.

(3) Sub-determination

Therefore, the facts charged by the first instance court do not constitute the crime of violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Misappropriation) and only the crime of breach of trust can be established against the defendant's act. However, the judgment of the first instance court that acquitted the defendant on the ground that the statute of limitations has already been expired at the time of the prosecution of this case.

3. Conclusion

Therefore, the prosecutor's appeal is dismissed in accordance with Article 364 (4) of the Criminal Procedure Act. It is so decided as per Disposition.

Judges Kim Sang-ok (Presiding Judge)