Defendant

Prosecutor

Park Young-young

Attorney Lee Won-ho

Seoul Eastern District Court Decision 2006Gohap183 Decided August 24, 2007

The prosecutor's appeal is dismissed.

1. Summary of grounds for appeal;

Although it is apparent that the defendant was in charge of selling the shares jointly with the victim and is in the position of the victim to handle the affairs, the court below found the defendant not guilty of the charge of violating the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Misappropriation of trust) on the ground that he cannot be deemed

2. Determination

A. Summary of the facts charged

The defendant is the representative director of the non-indicted 1 corporation, who is the executor company of the new apartment construction (title omitted), which constructs 2 apartment complexes of 95 households and 10 stories above the ground surface on the land outside 52, Songpa-dong, Songpa-gu, Seoul. The defendant is the representative director of the non-indicted 1 corporation, who is the executor company of the new apartment construction project. On January 5, 2004, when the above construction contract is entered into with the victim joint construction corporation (hereinafter referred to as the "balp construction") and the construction contract amount of 8,730,260,00 won, the construction price shall be paid from the proceeds in order to secure the construction price. The sale proceeds shall be deposited into the joint account in the name of the Si and the Si, and the sale proceeds not deposited into the account shall be recognized as one of the joint accounts, and the representative director of the Si and the sale price shall not be determined in full in accordance with the order of the pre-sale expenses, the sale price of the apartment and the sale price shall be determined in fact to the victim's.

In the sale office at the above construction site on December 4, 2003, the sale price was 710 million won in the sale price for the defendant's existing debt of 105 1005 dong 1005 dong 2 to the non-indicted 2, and the sale price was 213 billion won in the sale price account for the non-indicted 2's debt of 500 million won, despite the fact that the sale price was paid to the non-indicted 2 and the non-indicted 3's joint name through the non-indicted 2 and the non-indicted 3's certified judicial scrivener on August 30, 2005 and the registration of ownership transfer was completed in the name of the non-indicted 2 and the non-indicted 5 apartment as shown in the list of crimes in the attached Form, or even if the defendant received part of the sale price and the defendant did not deposit it into the account even if it was not paid, the sale price was completed in the name of the buyer or the non-party 62 billion won and property damage equivalent to the victim.

B. Determination

The crime of breach of trust is established when a person who administers another's business obtains pecuniary advantage or let a third party obtain it through an act in violation of one's duty, thereby causing loss to the principal. Since the principal of the crime of breach of trust is the person who administers another's business, who is the principal of the crime of breach of trust, has the duty to preserve or manage another's property based on a bilateral trust relationship between the two parties, the principal of the crime of breach of trust cannot be regarded as a person who administers another's business, even if the business is not a person's business but a person who administers another's business for his own business (Supreme Court Decision 200Do21

According to the records, when the defendant concludes the contract for apartment construction in this case between the two parties, the defendant entered into a joint agreement with the non-indicted 1 corporation and the joint construction, and the non-indicted 1 corporation jointly perform the business of sale and publicity, and the final liability of sale performance, etc. is paid as sales revenue, and the sales revenue is paid as sales revenue only to the deposit account opened in the joint name of the non-indicted 1 corporation and the joint construction, and the sales revenue is not recognized as all. The sales revenue is not recognized as ① the business expenses of the non-indicted 1 corporation, ② the payment of the unpaid land price, ② the payment of the unpaid land price, ② the payment of the principal and interest of the project financing, and the payment of the loan from the joint construction to the non-indicted 1 corporation, ③ the construction cost of the joint construction, and ④ the operation fund of the non-indicted 1 corporation and other non-indicted 1 corporation. The defendant did not directly pay the pre-sale apartment bonds in the order of the pre-sale discount to the defendant in violation of the above special agreement.

According to the above facts, the above special agreement is merely merely a way to ensure the repayment of the contract price for the double-use construction, which is the contractor of the non-indicted 1 corporation, and the authority to receive the sales revenue from the buyer of the apartment of this case still belongs to the non-indicted 1 corporation (other than this, there is no evidence that the authority to actually transfer the right to sell the apartment of this case to the double-use construction and to receive the sales revenue is recognized to have been transferred to the double-use construction), and the business to pay the sales revenue for the double-use construction with the sales revenue belongs to the defendant's own business. Thus, even if the defendant did not deposit the sales revenue for the apartment of this case into the joint management deposit account in violation of the above special agreement and used it for another purpose, it cannot be viewed as a mere civil default on the two-use construction, and it constitutes a crime of breach of trust.

C. Sub-committee

The recognition and judgment of the court below to the same purport is just, and there is no error of misconception of facts or misapprehension of legal principles alleged by the prosecutor.

3. Conclusion

Therefore, the prosecutor's appeal is dismissed in accordance with Article 364 (4) of the Criminal Procedure Act since the prosecutor's appeal is without merit. It is so decided as per Disposition.

【Crime List omitted】

Judges Choi Sung-ho (Presiding Judge)