Whether the crime of breach of trust is established in the event that the seller of real estate had registered the establishment of a new mortgage in the future of a third party after the intermediate payment was made by the seller, but the purchaser had a disposition prohibiting the disposal prior to the registration

In the case of the crime of breach of trust, the term "when property damage is incurred" includes not only the case of actual damage but also the case of causing the risk of damage. Therefore, if the victim sold 1/2 percent share of the salt farm and the person who received the down payment and the intermediate payment violated the duty to register the transfer due to repayment of the balance and thereby registered the establishment of a new mortgage in the future of the third party, it cannot affect the establishment of the crime of breach of trust even if the victim took a provisional measure against disposal before the registration of the establishment of the

Article 355(2) of the Criminal Act

Supreme Court Decision 69Do1001 Decided September 30, 1969 (Gong190,184) 89Do1309 Decided November 28, 1989 (Gong1990,184)

Defendant

Prosecutor

Seoul Criminal Court Decision 90No405 delivered on June 12, 1990

The judgment of the court below is reversed and the case is remanded to the Panel Division of the Seoul Criminal Court.

We examine the grounds of appeal.

In the case of the crime of breach of trust, the term "when the damage was inflicted on the property" includes not only the case where the actual damage was inflicted but also the case where the risk of the damage was caused (see, e.g., Supreme Court Decision 89Do1309, Nov. 28, 1989). As determined by the court below, the defendant violated the duty of the victim to sell one-half share of the instant salt farm to the victim and to take the procedure of registration of the transfer in exchange for the remainder and in exchange for the remainder, and if the defendant registered the establishment of the neighboring mortgage on the instant salt farm in the future of the bank, even if the victim had been subjected to the disposition of prohibition of disposal before the registration of the establishment of the said mortgage, it cannot be said that the risk of the execution of the said share was not occurred, so such provisional disposition does not affect the establishment of the crime of breach of trust (see, e.g., Supreme Court Decision 69Do1001, Sept. 3

-see, e.g., Supreme Court Decision 72Do2494 delivered on January 16, 1973;

Nevertheless, the court below affirmed the judgment of the court of first instance which acquitted the defendant on the ground that it cannot be deemed that the defendant inflicted property damage on the victim who registered the establishment of a collateral security on a bank after the victim took a disposition prohibiting the disposal of the instant salt before the instant salt. It erred by misapprehending the legal principles on property damage in the course of the crime of breach of trust, thereby affecting the conclusion of the judgment. The allegation pointing this out has

Therefore, the judgment of the court below shall be reversed and the case shall be remanded to the court below. It is so decided as per Disposition by the assent of all Justices.

Justices Ansan-man (Presiding Justice)