[1] The case where a legal evaluation of a defendant's series of acts is recognized as non-affortness of crime

[2] In a case where the Defendant, an apartment owner, was prosecuted for fraud and breach of trust on the ground that he obtained pecuniary benefits by deceiving a loan bank to cancel the provisional registration immediately after changing the principal registration of the right to claim ownership transfer on an apartment from the person having the right to the provisional registration by cancelling the provisional registration, and thereby inflicted damage on the Defendant by completing the registration of collateral security and right to lease on a deposit basis in the name of a third party on an apartment by violating the duty to restore the provisional registration, the case affirming the judgment below holding that the crime of breach of trust in a non-constient relationship is not established as long as fraud is acknowledged

[1] Articles 37, 347, and 355(2) of the Criminal Act / [2] Articles 347(1) and 355(2) of the Criminal Act

[1] Supreme Court Decision 2011Do1442 Decided May 13, 201 (Gong2011Sang, 1260)

Defendant

Defendant and Prosecutor

Attorney Early Initial System

Seoul Northern District Court Decision 2016No862 decided September 2, 2016

All appeals are dismissed.

The grounds of appeal are examined.

1. As to the Prosecutor’s Grounds of Appeal

A. In appearance, a series of acts by a criminal defendant, which forms the basis of the facts charged, are identical to several crimes; however, in the event that a series of acts constitutes a single social factual relationship by combining them, the legal evaluation of such acts is only one, and that is, where a crime by a criminal defendant is constituted, the other party cannot be established, and the other party’s crime may not be established, and only where a criminal defendant is not guilty of a crime by a party, the other party may be in an infinite relationship that can be established (see Supreme Court Decision 2011Do142, May 13, 201).

B. (1) Of the facts charged in the instant case, the part relating to the ○○ apartment as indicated in the lower judgment regarding the instant apartment is ① the Defendant changed the lending bank in the name of a third party on July 28, 201 when cancelling the registration of the right to claim transfer of ownership on the said apartment, immediately after changing the lending bank to a low interest rate, and by inducing Nonindicted Party 1 to cancel the provisional registration, thereby obtaining substantial pecuniary benefits from the provisional registration; ② the Defendant breached his duty to implement the procedure for the provisional registration of the right to claim transfer of ownership after changing the lending bank, thereby in violation of the duty to implement the procedure for the provisional registration of the right to claim transfer of ownership; ② the lower court found the Defendant guilty of not having committed the crime of breach of trust on the ground that the act of establishing a provisional registration and the right to lease on a deposit basis was merely an act of cancelling the provisional registration under the name of a third party on the said apartment, and thus, did not constitute the crime of breach of trust, and thus, did not constitute the crime of breach of trust.

In addition, the part concerning the forest land in the judgment of the court below among the facts charged in this case is as follows: ③ The defendant was designated as a preserved mountainous district and thus the defendant would have installed all facilities, such as access roads, etc. to enable a third party to stop a house on the forest land where it is impossible to construct a electric source house, etc.; the defendant made a sales contract on the 11 forest land by deceiving 11, such as Nonindicted Party 2, etc., and acquired the down payment and intermediate payment from the said 11, and ④ in violation of the duty to implement the registration procedure for transfer of ownership pursuant to each of the above sales contract; ④ in violation of the duty to implement the registration procedure for transfer of ownership, each of the above forests was acquired property benefits equivalent to the maximum debt amount and suffered property damage equivalent to the above 11. The court below found the defendant guilty of each of the facts charged in each of the breach of trust (4) The defendant did not have an intention to perform the registration procedure for transfer of ownership on the forest land, and thereafter completed the registration of establishment to the third party after concluding the registration of mortgage is included in fraud by deception, and thus, the part of the guilty.

(2) In light of the above legal principles and records, ① the above fraud, ② the crime of breach of trust, ③ the above fraud, and ④ the crime of breach of trust, respectively, cannot be established when one party commits a crime, and the other party is not in a non-conceptic relationship that can be established only when one party is innocent. Therefore, the judgment of the court below that the crime of breach of trust cannot be established as a separate crime of breach of trust is just, and contrary to what is alleged in the grounds of appeal, the court below did not err by misapprehending the legal principles as to the interpretation of the elements of

The Supreme Court precedents cited in the grounds of appeal are only cases where the case is different from the case of this case or where the subsequent act constitutes an act of ex post facto punishment in relation to the prior act. Therefore, it is inappropriate to invoke this case.

C. In addition, the prosecutor appealed the entire judgment of the court below, but there is no statement in the petition of appeal or the appellate brief that there is no objection to the remainder.

2. As to the Defendant’s ground of appeal

The argument that the lower court erred in incomplete deliberation on the determination of sentencing constitutes an allegation of unfair sentencing. However, according to Article 383 subparag. 4 of the Criminal Procedure Act, an appeal on the grounds of unfair sentencing is permitted only in cases where death penalty, life imprisonment, or imprisonment with or without prison labor for not less than ten years is pronounced. In this case where the lower court rendered a minor sentence against the Defendant, the argument that the determination of punishment is unfair

3. Conclusion

Therefore, all appeals are dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kwon Soon-il (Presiding Justice)