In a case where a seller sells real estate to a third party and completes a provisional registration to preserve the right to claim ownership transfer, whether it constitutes a crime of breach of trust (affirmative)

Article 355(2) of the Criminal Act

[Plaintiff-Appellant-Appellee] Plaintiff 1 and 1 other (Law Firm Gyeong, Attorneys Park Jong-soo et al., Counsel for plaintiff-appellant-appellant-appellee)

Defendant

Defendant

Attorney Choi Young-young

Gwangju High Court Decision 2007No373 Decided April 24, 2008

The appeal is dismissed.

We examine the grounds of appeal.

1. The time when a property loss is incurred in breach of trust includes not only a case where a real loss is actually incurred but also a case where a risk of property loss is caused. If a real estate seller, who is obligated to cooperate with the buyer in the procedure of ownership transfer registration, sells the same real estate twice to a third party other than the buyer, and completes provisional registration to preserve the right to claim ownership transfer in the future, this constitutes a crime of breach of trust, which causes a danger of loss to the buyer (see, e.g., Supreme Court Decisions 81Do278, Jun. 14, 1983; 2006Do3626, Nov. 9, 2006).

The court below held that even though the defendant sold the forest of this case to the victim and received some balance as stated in its holding, the defendant again sold the forest of this case to a third party and received the down payment, thereby completing provisional registration for preserving the right to claim ownership transfer in the future, thereby constituting a violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Misappropriation). Such judgment of the court below is just in light of the aforementioned legal principles and records, and there is no error of law such as misunderstanding of legal principles as to the commencement of the

2. According to the records, although the defendant filed an appeal against the judgment of the court of first instance, the defendant did not submit the grounds for appeal within the due period for submitting the grounds for appeal, and did not state the grounds for appeal even in the petition of appeal. The court below accepted the prosecutor's appeal that the defendant's act constitutes the violation of trust, and revoked the judgment of the court of first instance which recognized it as the attempted crime and imposed a heavier punishment as seen above. As such, the defendant's assertion that the defendant did not have the intent to commit the crime of breach of trust is not a legitimate ground for appeal, and it can be sufficiently recognized that the defendant had the intention to commit the crime of breach of trust according to the evidence adopted by the court of first instance, which the court

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

Justices Shin Hyun-chul (Presiding Justice)