Where an obligee fails to repay an obligation by the agreed date when he/she receives the documents required for the registration of transfer of ownership from the obligor as a collateral for bonds, he/she shall dispose of such real estate and appropriate the remainder to the principal and interest of such obligation, and if he/she is entrusted with returning the remainder, such obligee shall be limited to the person who

85.11.26.85Do1493 en banc Decision 85Do1493 Decided November 26, 200) If a creditor receives from a debtor documents necessary for the registration of transfer of ownership from the debtor as a collateral security and fails to repay the debt within the agreed period, if he/she disposes of the real estate and uses the real estate to return the remainder to the principal and interest of the debt, it can be deemed that he/she carries out another person's business

Article 355(2) of the Criminal Act

Defendant 1 and one other

Prosecutor

Seoul High Court Decision 69No175 delivered on November 20, 1970, Daejeon District Court Decision 69No175 delivered on July 20, 197

The original judgment is reversed, and the case is remanded to Daejeon District Court Panel Division.

judgment on the grounds of appeal by the prosecutor;

The crime of breach of trust is established when a person who administers another's business obtains pecuniary advantage or has a third party obtain it from an act in violation of his duty and thereby causes loss to the principal. The summary of the facts charged (amended in the appellate trial) is as follows: around July 14, 1965: Defendant 1, Nonindicted 1, 2, and 3 obtained a mortgage amount of KRW 900,000 for the real estate (site and building) located in the substitute exhibition from the public around July 14, 1965 and obtained a mortgage amount of KRW 700,000 per month with interest of KRW 60,000 for the above debt amount; Defendant 2,000,000 for the above debt amount of KRW 80,50,000,000 for the above debt amount of KRW 703,50,000,000 for the above debt amount of KRW 50,500 for the above real estate at the time of disposal of the above real estate and return the balance to that person.

Of the facts charged, when the debtor delivers all documents necessary for the registration of the transfer of ownership on the real estate as a collateral security to the defendant 1 from the debtor among the above facts charged, if the debtor does not repay the above real estate within the agreed period, the above real estate is disposed of and appropriated to the principal and interest of the debt, and if the remaining amount is returned to the debtor, it can be deemed that the business for others is conducted in accordance with the scope of the entrustment. If the facts charged regarding the management of affairs is proved by evidence, it can be deemed that the crime of breach of trust is established. However, even if the facts charged are proved by the evidence, the court below found the defendant 1 to have agreed upon and completed the registration of transfer of ownership on the real estate in the name of the defendant 1's wife, and it is clear that the registration was made in his name for the purpose of securing the claim from the weak mortgagee, and this is merely an exercise of authority belonging to the scope of the right to dispose of the real estate, and it cannot be determined as a person who merely violates the duty of the defendant 1 to dispose of the real estate.

However, according to the records, in this case where the defendant et al., who acquired the ownership of the above real estate as an accord and satisfaction, instead of a weak security, and there is a change in the ownership of the above real estate, as seen earlier, if proof of the facts charged is given based on evidence, the crime of breach of trust can be established. However, the court below's failure to reach this point of view or the legal principles on the crime of breach of trust, which affected the conclusion of the judgment. Therefore

Therefore, the original judgment is reversed, and the case is remanded to the Daejeon District Court Panel Division. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Supreme Court Judge Yang Byung-ho (Presiding Judge)