[1] In a case where a debtor assumes the obligation to establish a mortgage on a real estate owned by a creditor under a mortgage contract for securing a pecuniary obligation, whether it constitutes “a person who administers another’s business” in relation to the creditor (negative)

[2] The case holding that in a case where the Defendant was indicted for violating the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Misappropriation) on the ground that he acquired property benefits equivalent to KRW 1.2 billion and sustained the same damages to a third party by setting up the fourth-class collateral with the maximum debt amount, even though the Defendant agreed to set up the fourth-class collateral security right in the apartment owned by the Defendant as security by borrowing KRW 1.8 billion from the Defendant, on the ground that he did not constitute “a person who administers another’s business” in relation to the Defendant’s apartment owned by the Defendant

[1] [Majority Opinion] Even if a debtor assumes the obligation to establish a mortgage on the real estate owned by him/her according to a mortgage agreement for securing a pecuniary obligation, it cannot be deemed that the debtor, on the basis of a fiduciary relationship with the creditor going beyond an ordinary contractual relationship, to handle the creditor’s affairs based on a fiduciary relationship with the creditor.

The obligor’s obligation to establish a mortgage on a creditor under a mortgage agreement is the obligor’s own obligation under a contract. Since the obligor’s performance of such obligation is merely an obligor’s own business, it cannot be said that “a person who administers another’s business” in relation to the obligee. Therefore, even if the obligor’s performance of such obligation causes danger to the obligee’s realization by reducing or losing the value of the security first by creating a mortgage on the security or transferring the security to a third party, it cannot be said that the

The above legal principle applies to the case where a debtor concludes a contract to establish a security for transfer of real estate as a security for a pecuniary obligation and accordingly disposes of such real estate to a third party even though he/she is obligated to register

[Dissenting Opinion by Justice Kim Jae-hyung, Justice Min You-sook, Justice Kim Ri-soo, and Justice Lee Dong-won] Where an obligor has entered into a mortgage agreement for securing the obligation by borrowing money from an obligee, in accordance with the terms and conditions of the said agreement, the obligor’s obligation to establish a mortgage falls under one’s own business and at the same time constitutes “other’s business” as the obligor’s duty to cooperate in preserving the other party’s property. In a case where the obligor has a duty to cooperate in preserving the other party’s property in order to protect the fiduciary relationship arising from the transactional relationship, the Majority Opinion is inconsistent with the Supreme Court precedents, which held that the obligor falls under “a person who administers another’s business,” and the fiduciary relationship based on the security contract can be a legal interest

If an obligor, who entered into a mortgage agreement on real estate, sells the real estate to a third party and makes it impossible or considerably difficult for the obligee to acquire the mortgage on the real estate, such an act constitutes a breach of trust as it violates the intrinsic and intangible fiduciary relationship arising from the mortgage agreement, and constitutes a breach of trust. Such a view accords with the established attitude of the precedents that recognized the breach of trust regarding double disposal of the real estate, such as double sale of real estate, double lease on a deposit basis, and license.

[2] In a case where the Defendant borrowed KRW 1.8 billion from the Defendant’s apartment owned by the Defendant as collateral and agreed to set up the fourth-class collateral with the Defendant’s name to set up the fourth-class collateral with the maximum debt amount of KRW 1.2 billion, thereby acquiring property benefits equivalent to KRW 1.2 billion and causing damages equivalent to the same amount to the Defendant, and thus, was prosecuted for violating the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Misappropriation), the case holding that in the above mortgage contract, the court below erred by misapprehending the legal principles as to the meaning of “a person who administers another’s business” in the crime of breach of trust, on the grounds that, as long as it cannot be deemed that the Defendant’s management of another’s business based on the trust relationship with the Defendant, which goes beyond the ordinary relationship with the Defendant, cannot be deemed to be “a person who administers another’s business” in relation to the Defendant, on the ground that the lower court found otherwise, guilty of the charge of breach of trust.

[1] Article 355(2) of the Criminal Act / [2] Article 355(2) of the Criminal Act; Article 3(1)2 of the former Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Amended by Act No. 15256, Dec. 19, 2017); Article 325 of the Criminal Procedure Act

[1] Supreme Court Decision 2007Do9328 decided Mar. 27, 2008 (Gong2008Sang, 639), Supreme Court Decision 201Do11224 decided Nov. 10, 201 (overruled)

Defendant

Defendant

Law Firm (LLC), Attorneys Yoon Sung-won et al., Counsel for the defendant-appellant-appellee)

Seoul High Court Decision 2019No287 decided September 26, 2019

The judgment below is reversed and the case is remanded to Seoul High Court.

The grounds of appeal are examined.

1. Establishment of double mortgage on real estate and breach of trust;

A. Since the crime of breach of trust is established when a person who administers another’s business obtains pecuniary advantage or causes a third party to acquire it through an act in violation of his/her duty, the subject of the crime must be in a position to deal with another’s business. Here, in order to be “a person who administers another’s business,” the subject of the crime must be in a position to deal with the other’s business. The subject of the crime should be in a position to protect or manage another’s property based on a fiduciary relationship between the parties, such as where all or part of the business regarding the management of another’s property is performed on behalf of the other party (see, e.g., Supreme Court en banc Decision 2008Do10479, Jan. 20, 201; Supreme Court en banc Decision 2014Do363, Aug. 21, 2014).

The mere fact that the other party gains the benefit of satisfaction of a right under a contract or of realizing a claim through the performance of the other party’s duty under a good performance under a commercial contractual relationship in a separation relationship is not a person who administers another party’s business (see, e.g., Supreme Court en banc Decision 2015Do1301, Mar. 26, 2015) and that there is an incidental obligation to protect or take account of the other party in the performance of the contract cannot be deemed a person who administers another’s business (see, e.g., Supreme Court en banc Decision 2019Do9756, Feb. 20, 202).

B. Even though the obligor, in accordance with a mortgage agreement for securing a pecuniary obligation, had the obligee liable for the settlement of mortgage on the real estate owned by him/her, it cannot be deemed that the obligor, on the basis of a fiduciary relationship with the obligee beyond an ordinary benefit-based relationship arising out of a contract, entrusts the obligee with the affairs of the obligee.

The obligor’s obligation to establish a mortgage on a creditor under a mortgage agreement is the obligor’s own obligation under a contract. Since the obligor’s performance of such obligation is merely an obligor’s own business, it cannot be said that “a person who administers another’s business” is not “a person who administers another’s business” in relation to the obligee. Therefore, even if the obligor’s performance of such obligation causes danger to the obligee’s realization of the claim by reducing or losing the value of the security by creating a mortgage on the security in advance

C. The foregoing legal doctrine applies to cases where a debtor concludes a contract to establish a security for transfer of real estate as a security for a pecuniary obligation and accordingly disposes of such real estate to a third party even though he/she has a duty to register the ownership

D. In contrast, Supreme Court Decisions, including Supreme Court Decisions 2007Do9328 Decided March 27, 2008; 201Do11224 Decided November 10, 201, which held that, on the premise that the obligor, who agreed to set up a right to collateral on real estate for debt security, falls under a person who administers the obligee’s business, if the obligor disposes of collateral, the crime of breach of trust is established, shall be modified to the extent inconsistent with this Opinion.

Meanwhile, Supreme Court en banc Decision 2017Do4027 Decided May 17, 2018 recognized the establishment of a crime of breach of trust in the case of double selling of real estate. The above decision has a large portion of real estate in the economic life of the people, and the real estate sales amount is divided into a down payment, an intermediate payment, and an balance, and is paid. The buyer has maintained the conventional view that the crime of breach of trust is established in the case of double selling of real estate, taking into account the special characteristics of the transaction where the seller does not have sufficient means to prevent double selling of real estate even if the seller pays the down payment and an intermediate payment, which accounts for a significant portion of the purchase price

2. The judgment of the court below

A. The lower court found the Defendant guilty on the facts charged of the instant case that: (a) the Defendant, while borrowing KRW 1.8 billion from the victim, agreed to set the 4th priority collective security right to the instant apartment; (b) provided the third party with the maximum debt amount of KRW 1.2 billion by setting up the 4th collective security right with the third party with the maximum debt amount of KRW 1.2 billion; and (c) acquired

B. However, in light of the legal principles as seen earlier, in the instant mortgage contract, insofar as the typical and fundamental contents of the relationship between the Defendant and the victim are repayment of the obligation and security for it, and the Defendant cannot be deemed to be in charge of the business of the victim based on the fiduciary relationship with the victim beyond an ordinary relationship with the victim, it cannot be deemed that the Defendant constitutes “a person who administers another’s business” in relation to the victim. Nevertheless, the lower court convicted the Defendant of the facts charged in the instant case on the premise that the Defendant falls under such a relationship. In so doing, the lower court erred by misapprehending the legal doctrine as to the meaning of “a person who administers another’s business” in the crime of breach of trust.

3. Conclusion

Therefore, without further proceeding to decide on the remainder of the grounds of appeal, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices, except for a dissenting opinion by Justice Kim Jae-hyung, Justice Min You-sook, Justice Kim Seon-soo, and Justice Lee Dong-won, and a concurrence with the Majority by Justice Kwon Soon-il, Justice Ahn Jae-chul, and Justice Noh Jeong-tae, and a concurrence with the Dissent by Justice

4. Dissenting Opinion by Justice Kim Jae-hyung, Justice Min You-sook, Justice Kim Ri-soo, and Justice Lee Dong-won

A. The key issue of the instant case is whether a crime of breach of trust is established in the event an obligor, who borrowed money from a creditor to make a mortgage on the real estate as collateral, received a loan money from a creditor and established a mortgage on a third party before the creditor made a mortgage (the time of disposal is limited to the real estate, and the time of disposal is limited to the time before the mortgage is created after the receipt of the loan money. In fact, this issue can be seen as an issue of interpreting the penal provisions abstractly, but since the property, the time of crime, the type of act, etc. subject to the inclusion are specifically specified, it does not directly lead to any conclusion from the principle of no punishment without law, which is the large principle, since the Majority Opinion en banc Decision 2017Do4027 Decided May 17, 2018 affirmed the establishment of a crime of breach of trust against double selling of real estate, and criticizes the violation of the principle of no punishment without law.

The Majority Opinion argues that even if an obligor who entered into a mortgage agreement on a debt-backed real estate to a creditor disposes of the real estate to a third party prior to the settlement of mortgage, a breach of trust is not established even if the obligor disposes of the real estate to a third party prior to the settlement of mortgage on the creditor.

However, in the event that a debtor assumes a debt by borrowing money from a creditor and executes a mortgage contract for securing the debt, the debtor’s obligation to establish a mortgage in accordance with the terms and conditions of the above agreement constitutes one’s own business and at the same time constitutes “other person’s business” as it constitutes “a person who administers another’s business,” which is the subject of the crime of breach of trust, in the event that there is a duty to cooperate in preserving another’s property in order to protect the trust relationship between the parties arising from the transactional relationship, the Majority Opinion cannot agree with the Supreme Court precedents that regard the person who administers another’s business, as the subject of the crime of breach of trust, and the trust relationship based on the security contract

B. The essence of the crime of breach of trust lies in a violation of a duty that undermines another person’s trust based on a fiduciary relationship, thereby causing property damage to the other person. Such a violation includes any act that does not perform an act that is naturally expected under the law, the content of a contract, or the good faith principle, or an act that is anticipated not to perform an act that is naturally expected not to do so, in light of specific circumstances, such as the content and nature of the business.

As such, the form of the crime of breach of trust may arise in various forms, but since all violations of trust arising from transaction cannot be punished as the crime of breach of trust, it is inevitable and necessary to restrict the criminal act of breach of trust to a certain extent through the interpretation of the penal law. However, even so, even if so, it is difficult to say that the restriction of the criminal act of breach of trust is inevitable and necessary to a certain extent. However, it is difficult to exclude the property rights and trust relationship of individuals that should be protected under the criminal law by excessively reducing the scope of the punishment of breach of trust and excessively reducing the scope of the punishment, thereby excluding the property rights and trust relationship of individuals that should be protected under the criminal law.

This is true in light of the process of establishing a established legal principle that the consensus that the involvement in criminal law is legitimate in the double selling of real estate is widely existing, and that if a person who is obligated to cooperate in preserving the property of the trading partner intentionally violates his/her duty and intentionally causes damage to the other party which is difficult to recover, it can be punished for breach of trust.

C.1) In the past, the Supreme Court has consistently held that, in addition to the case of acting as an agent for another person’s property management, it constitutes a “other person’s business” as referred to in the crime of breach of trust even in the case of performing the obligation to cooperate in preserving the other party’s property at the same time (see, e.g., Supreme Court Decisions 71Do1544, Nov. 15, 1971; 83Do2057, Oct. 11, 1983; 96Do1218, Jun. 24, 197). As a result, the Supreme Court has consistently held that, in the case of double selling of real estate, since the seller has a duty to cooperate for a long time until the completion of the registration of ownership transfer after receiving the intermediate payment from the buyer, the crime of breach of trust has been established if it overlaps with a third party (see, e.g., Supreme Court Decisions 74Do2154, Dec. 23, 1975>

2) Supreme Court en banc Decision 2017Do4027 Decided May 17, 2018 re-verification the legal doctrine that the business process in question only protects and manages another person’s interest, and that, even if the nature of the business for another person’s interest is not necessary, where the nature of the business for another person’s interest goes beyond the incidental and surrounding meaning, it constitutes “the business for another person.” From the time when a contract, such as the payment of intermediate payment, etc., was fully performed, the seller maintained the previous precedents recognizing double selling of real estate as a crime of breach of trust by deeming that the seller was in a fiduciary relationship that protects and manages the buyer’s property interest in cooperation

3) Furthermore, judicial precedents have affirmed the establishment of the crime of breach of trust by deeming that the trust of the transfer of right to real estate and the need to protect such trust are equally recognized not only in a sales contract but also in other legal relations aimed at the transfer and creation of the right to real estate. Accordingly, the Supreme Court recognized the establishment of the crime of breach of trust in cases where a mortgage contract was concluded and the third party disposed of real estate or registered the establishment of the neighboring mortgage before the execution of the registration procedure (see, e.g., Supreme Court Decisions 2007Do9328, Mar. 27, 2008; 201Do11224, Nov. 10, 201); and recognized the establishment of the crime of breach of trust in cases where a contract to establish a right to lease on a real estate or a contract to establish a security for transfer to a third party before the execution of the registration procedure following such contract (see, e.g., Supreme Court Decisions 93Do206, Sept. 28, 1993; 96Do128

4) In addition, the Supreme Court affirmed the establishment of the crime of breach of trust in the case of double mortgage even after Supreme Court en banc Decision 2014Do3363 Decided August 21, 2014, which held that the debtor who made a promise to pay in kind on real estate as collateral is not a person who administers another's business (Supreme Court Decision 2018Do1584 Decided January 10, 2019; Supreme Court Decision 2019Do13730 Decided November 28, 2019), which held that the crime of breach of trust has been established with respect to double selling of real estate, on the grounds that the above Supreme Court en banc Decision 2017Do4027 Decided the above legal principles, which affirmed the establishment of the crime of breach of trust on the grounds that the person who is liable to transfer ownership due to exchange, gift, and payment agreement cooperates in preserving the other party's property and is protecting and managing the property interest (Supreme Court Decision 2016Do1301681, Oct. 4, 2018).

D. In light of the attitude of such precedents, in the event that the establishment of a mortgage contract on real estate for the purpose of security was concluded and the real estate was disposed of to a third party at will, as in the instant case, the crime of breach of trust is established according to the Supreme Court precedents so far. The sale and purchase of real estate and the establishment of a mortgage are common nature that both parties violate their duties based on a fiduciary relationship, which is a cooperation in the registration procedure, and it is difficult for the Supreme Court to consistently deal with the criminal punishment of both parties as in the Majority Opinion, because it is inconsistent with the attitude that the Supreme Court has consistently taken on the double disposal of the property (sale, establishment of a

As seen earlier, the Supreme Court en banc Decision 2017Do4027 Decided 2017 supra maintained the position that a double seller of real estate constitutes a crime of breach of trust, rather than merely taking the grounds for a seller’s duty to cooperate in the buyer’s acquisition of real estate according to a sales contract, but the seller intentionally lacks trust and makes it impossible for the buyer to acquire his/her ownership. Due to the characteristics of real estate transaction, the seller is in a position that may pose a risk to make the buyer impossible to acquire his/her ownership. Therefore, the transfer of his/her right upon registration to the buyer is based on a strong fiduciary relationship between the seller and the buyer formed in a real estate transaction, not simply performing the duty to transfer ownership under a sales contract, and thus, the duty to cooperate in the performance or registration of a sales contract can be evaluated as a duty under such fiduciary relationship, and the seller’s position to cooperate in such trust can be evaluated as a person who administers the affairs related to the buyer’s acquisition of rights.

In this regard, in a case where a debtor who entered into a mortgage contract disposes of real estate to be provided as security to a third party, it is reasonable to view that the crime of breach of trust is established if the debtor disposes of such real estate again to a third party. Rather, in the case of a sale of real estate, the seller may assert the buyer’s defense of simultaneous performance with the remainder payment at the stage of the seller’s receipt of the intermediate payment. On the other hand, in a case where the debtor who was paid the loan money entered into a mortgage contract as security for pecuniary obligation, if the creditor files a claim for the registration of establishment of a mortgage, then the debtor is bound to do so without any defense. The latter is similar to the position of the seller of real estate that received the balance of the sale, and thus, it is unreasonable to view that the crime of breach of trust is established if the debtor disposes of the relevant real estate again to a third party. According to the Majority Opinion, it is difficult to find out that there is a difference between the parties’ obligation to sell the real estate and the third party’s obligation to sell the real estate in the future.

Furthermore, considering that the proportion of real estate transactions in Korea’s economic life or the socioeconomic significance of transactions for this purpose is still high, as in the instant case, it cannot be readily concluded that the obligor’s act of borrowing money from the obligee to set up a mortgage and then disposing of the real estate to a third party is less than that of double selling of the real estate. The obligor may choose a method of lending money equivalent to the market price by offering the real estate as security instead of selling the real estate in order to cash the ownership of the real estate. However, the amount in this case is more than the sum of the down payment and intermediate payment ordinarily determined in the sale of the real estate. Nevertheless, unlike double selling of the real estate, if the obligor’s business of setting up a mortgage on the creditor as agreed upon by the obligor is merely an obligor’s personal affairs and is deemed irrelevant to the obligee’s creditor’s claims, the trust relationship in the money loan as security, and it is difficult to expect confusion in the role and function of the transaction.

In addition, Supreme Court en banc Decision 2014Do363 Decided the above Supreme Court Decision, despite the recent Supreme Court Decision 2014Do3363, the duty to cooperate in preserving the other party's property still becomes the essential substance of the fiduciary relationship in exchange or donation based on the awareness that the real estate has a great weight in the economic life and that the transaction for this purpose is significant. Such intent should be equally applied to the fiduciary relationship between the parties who lent money and intend to establish a mortgage as a security. This is because the fiduciary relationship with respect to the transfer of right to real estate and the need to protect creditors thereof should be focused on other legal relations aimed at the transfer and establishment of the right to real estate. In particular, it cannot be said that there was time difference between the parties to exchange or donation and the double mortgage case of the real estate with a large amount of damage to the other party, and it is doubtful whether there was any substantial change in the social assessment or transactional reality.

E. The Majority Opinion deeming that the execution of procedures for the establishment of mortgage in accordance with a mortgage agreement constitutes “one’s own business” under the agreement and is not “other’s business” as “the establishment of mortgage agreement. Since a contract is a subordinate to a contract for the establishment of a secured claim and the typical and fundamental obligation of the parties is satisfied even after the establishment of mortgage, it seems that all of the obligations owed before and after the establishment of mortgage lies in the view that the obligation is subordinate to a pecuniary obligation.

In the event that real estate has been provided as security for a monetary obligation, the obligor shall bear the obligation of repayment and the obligation of collateral maintenance, and the obligation of collateral maintenance is extinguished if the secured obligation is completed. As a result, it is based on the subsidiary nature that the secured obligation can be established only on the premise of the secured obligation. If the secured obligation is not established but the secured obligation is extinguished if the secured obligation is not established, the security right is extinguished in accordance with the civil law.

However, the obligation of a mortgager under a monetary loan contract and a mortgage-holder under a security contract is an obligation arising out of different contracts. It is unreasonable to conclude that a security right has the characteristics of secured claims as above with regard to the secured claims, and that it is not consistent with the criteria for determining another person’s business as referred to in the crime of breach of trust. In particular, since the nature of extinction is excluded, the right to collateral in this case, which is at issue, does not affect the continuation of the right to collateral even if the claim is extinguished due to repayment, etc. until the secured claim is finalized (see Article 357(1)2

The Supreme Court en banc Decision 2014Do3363 Decided the foregoing Supreme Court en banc Decision 2014Do3363 Decided the establishment of the crime of breach of trust in the case of the promise for payment in kind for the purpose of mortgage is because the ultimate purpose of the promise for payment in kind is to secure the repayment of loan and the obligor’s obligation to perform the registration of ownership transfer of real estate through the promise for payment in kind is nothing more than the incidental contents required for the obligor to achieve the ultimate objective. On the contrary, the security right acquired by the obligee through the collateral contract is not only an independent property value, but also an obligee’s trust in the collateral value also constitutes an inherent legal interest that should be protected by the criminal law. On the other hand, the obligee is not in the position of waiting for the obligee’s secured claim in the case of double sale in real estate, but also can recover funds that the obligee invested with by raising funds from the outside or transferring the collateral on the secured claim supported by mortgage along with the secured claim in question. In recent years, where the ownership of real estate is acquired by double sale in real estate as well as the acquisition and transfer value of ownership.

Today, security rights, including mortgage, functioned as a financial instrument for the consumption of the general public as well as as a system for the financing of companies. Accordingly, security rights are not only traditional roles to receive monetary claims, but also play an important role to intermediate investment by having financial service providers participate in the distribution of corporate profits in the form of interest. As can be seen, security rights are actively engaged in transactions related to financing of funds, such as transfer of rights to other interests or creation of new rights such as pledge rights based on such rights, etc. In the context of active transactions, and these phenomena are deepening and frequent as economic development develops. Accordingly, academic circles have discussed that security rights should be mitigated in line with the circumstances of secured claims. In this regard, mortgage contracts should be considered as only an incidental content of transactions in a trust relationship. Rather, the intrinsic nature of a trust relationship between creditors and creditors should be seen as the establishment of a trust relationship between an obligor and an obligor’s own obligation to maintain and preserve ownership of real estate, and thus, the intrinsic nature of a trust relationship should be seen as the establishment of a trust relationship between an obligor and an obligor’s own obligation to secure ownership of real estate.

F. Meanwhile, the Supreme Court en banc Decision 2019Do9756 Decided February 20, 2020 regarding dual transfer of movable property was a key issue whether the obligation to maintain and keep the collateral of the person who created the security interest can be seen as another person’s business after the establishment of the transfer security right on movable property. On the other hand, the key issue of the instant case is whether the obligation to establish a mortgage, i.e.,, the obligation of the debtor to cooperate in the acquisition of the creditor’s right, can be the typical and fundamental substance of

Therefore, this case should be evaluated differently from the above Supreme Court en banc Decision 2019Do9756 Decided the degree of binding force of a contract as to whether the act of violating one's duty is recognized, transaction practice, type and content of a fiduciary relationship, and degree of violation of trust, as a matter of whether the obligation to cooperate in the preservation of property concerning the acquisition of rights can be seen as another person's business.

G. The Majority Opinion considers that the ultimate purpose of a mortgage contract is to secure the performance of a monetary obligation, and the obligor’s obligation to implement the registration of establishment of a mortgage on real estate under a mortgage contract has reached the conclusion that it does not constitute “other’s business.” The Majority Opinion completely changed the previous position that the obligor’s obligation to implement the registration of establishment of a mortgage on real estate does not constitute “other’s business.” This is to protect the real right, which is a property right guaranteed by the Constitution, more strongly by the punishment, and the exchange value of the property is objectively appropriate and, even if the essential contents of the real right, which seeks to secure the preferential control, are violated, the circumstance that the exchange value of the property is not serious to the extent that it is subject to criminal punishment. Thus, the Majority Opinion is the highest court that must present the value to be pursued by our society and its direction, and the Majority Opinion should state more fundamental and fundamental reasons for the decision that has been made different from the previous one at this time, and it should not substitute for the determination of the important value of our society by presenting the aforementioned reasons.

H. The Majority Opinion states, “A debtor, even though he/she had the obligation to establish a mortgage on a creditor in accordance with a mortgage agreement to secure a pecuniary obligation, cannot be deemed to have entrusted the creditor’s business to a third party on the basis of a trust relationship with the creditor, beyond an ordinary benefit-based relationship arising out of a contract.” Furthermore, the foregoing legal doctrine states, “The foregoing shall also apply where the debtor, by entering into a contract to establish a security for transfer with respect to real estate as security for a pecuniary obligation, has the obligation

However, there is no difference in the Majority Opinion in that “a debtor is obligated to establish mortgage upon a mortgage agreement and “a buyer is obligated to transfer ownership to a seller according to a sales contract” as stated in the Majority Opinion in the en banc Decision 2017Do4027, supra, the duty of a buyer to transfer ownership to a seller according to a sales contract is only the form of the transfer of ownership, and both the obligation to preserve property to a creditor is the intrinsic and intangible substance of a trust relationship between the parties. Furthermore, in the case of a transfer for security, the Majority Opinion is inconsistent with the foregoing Supreme Court en banc Decision 2017Do4027 Decided 207, supra in that the obligation of a person who establishes

I. In conclusion, if an obligor, who entered into a mortgage agreement on real estate, disposes of the real estate to a third party and makes it impossible or considerably difficult for the obligee to acquire the mortgage on real estate, such an act constitutes a crime of breach of trust as it violates the intrinsic and intrinsic fiduciary relationship arising from the mortgage agreement and constitutes a crime of breach of trust. Furthermore, deeming such an act accords with the established attitude of the precedents that recognized the crime of breach of trust regarding double sale of real estate, establishment of double chonsegwon, license, etc.

In light of the above legal principles, the judgment of the court below that the act of establishing a collateral to a third party on real estate which the defendant who concluded a mortgage contract in this case provided as collateral constitutes a crime of breach of trust is just, and there is no error by misapprehending the legal principles on the meaning of "a person who administers another's business."

For the foregoing reasons, we respectfully dissent from the Majority Opinion.

5. Opinion concurring with the Majority Opinion by Justice Kwon Soon-il, Justice Ahn Soo-chul, and Justice Noh Jeong-ok

A. The Dissenting Opinion argues that, as the nature of a fiduciary relationship in a real estate sales contract is to transfer the ownership of the real estate, the intrinsic nature of a fiduciary relationship in a mortgage agreement concluded for the purpose of collateral is to acquire the collateral value of the real estate to the creditor by providing it as a collateral, the double selling of the real estate and double mortgage should be treated in the

B. However, the Dissenting Opinion is inconsistent with the recent Supreme Court en banc decisions that deny the establishment of breach of trust in relation to the restriction of intervention in the state's penal authority and the double disposal of property against default of civil debt in accordance with the principle of strict interpretation of penal law and the development of the legal system. Therefore, it is difficult to accept

1) Interpretation of penal provisions should be strict, and excessively expanded or analogical interpretation of the meaning of the language and text in the direction unfavorable to the defendant is impermissible as it is contrary to the principle of no punishment without the law. Furthermore, regulating disputes by penal provisions in the area of economic activity controlled by the principle of private autonomy rather than resolving disputes by civil means in the area of economic activity should not only cause excessive intervention in the penal authority and infringe on the freedom of individuals, but also cause negative effects that distort the adjustment of reasonable and autonomous

A) The elements of the crime of breach of trust are that “a person who administers another’s business” acquires pecuniary advantage or has a third party acquire it through “an act in violation of his/her duty,” thereby causing loss to the principal. The Supreme Court precedents regard the act of breach of trust as “any act in violation of the duty of breach of trust by failing to comply with the provisions of Acts and subordinate statutes, the content of the contract, or the act that is naturally expected under the good faith principle, in light of the specific circumstances, such as the content and nature of the business to be performed.” However, if it is interpreted that all acts in violation of Acts and subordinate statutes or contracts under private law can be punished as a crime of breach of trust, it would result in a complete criminal punishment of civil cases. In this regard, the meaning of “a person who administers another’s business,” who is the subject of the crime of breach of trust, need not be abused by faithfully interpreting the nature of the crime of breach of trust. Since it is not reasonable to rate a contract breach of trust under private law as a breach of trust, it should be careful when applying the legal principles on “an act of breach of trust.”

In the past, the Supreme Court has reason to recognize the establishment of the crime of breach of trust on the grounds of the duty to cooperate in registration with respect to double selling of real estate. Unlike other property, real estate has a relatively large need to protect transaction parties because its property value has increased, and in the process of changing from the current civil law to the current civil law, the legal concept that remains. However, the concept that the right should be acquired only if it has been registered beyond half century since the Civil Act was implemented, has been firmly established among the people, and a variety of forms of systems have been established to relieve the rights in the civil law, and there have been a lot of assets with a more important value than real estate. In addition, excessive intervention in the State penal authority in the area of judicial area has also impeded appropriate and efficient distribution of limited resources.

B) The subject of the crime of breach of trust is “a person who administers another’s business.” Therefore, in order to recognize the crime of breach of trust, whether a person who administers another’s business is “a person who administers another’s business,” prior to examining whether there was an act of breach of trust. In the crime of breach of trust, “a person who administers another’s business” should first be determined as “a person who administers another’s business.” In other words, “a person’s business” should be a person who administers another’s business on his/her behalf, as a business that belongs to another person. In other words, the subject of the business should be a person who administers another’s business. Therefore, even if a party to a contract faithfully performs his/her duties in accordance with the terms of a contract, and the other party has a relationship that obtains a benefit that is the satisfaction

In light of the above, in order to deem one of the parties to a contract to be “a person who administers another’s business”, one of the parties to a contract shall not only bear the obligation under the good faith principle to take into account the protection of the other party’s pecuniary advantage, but also demand that the other party has a fiduciary relationship with which the obligation to protect or manage the other party’s property is typical and essential.

C) The Supreme Court denied the crime of breach of trust established on the ground that the seller of a movable property sales contract is not in a position to handle his/her business against the buyer, and even if he/she disposed of the object in another (Supreme Court en banc Decision 2008Do10479 Decided January 20, 201). Even if the debtor concluded a pre-contract for payment in kind for the purpose of collateral and then arbitrarily disposed of the real estate to a third party, the debtor did not have a duty to transfer ownership of the real estate in accordance with the pre-contract for payment in kind (Supreme Court en banc Decision 2014Do3363 Decided August 21, 2014). Furthermore, even if the debtor arbitrarily disposed of the real estate on the ground that the debtor’s obligation to maintain and preserve the collateral value to the mortgagee, who was the creditor of the debtor, who established a security right on movable property for the purpose of collateral security, cannot be deemed a business of another person, the crime of breach of trust was not established even if the debtor arbitrarily disposed of it (Supreme Court en banc Decision 2019Do97566, Feb.

Supreme Court Decision 2015Do6057 Decided June 4, 2020 also denied the establishment of a crime of breach of trust on the grounds that it is difficult to deem the transferor of stocks to be in a position to handle another person’s business in cases of dual transfer of stocks prior to issuance of share certificates. The Majority Opinion is faithful to the purport of such a series of precedents.

2) The Dissenting Opinion argues that the legal doctrine of the Supreme Court en banc Decision 2017Do4027 Decided May 17, 2018, which recognized the establishment of the crime of breach of trust with respect to double selling of real estate, ought to be applied, and the Majority Opinion is inconsistent with the purport of the above judgment. In addition, the Majority Opinion that evaluates the same differently is an interpretation that violates the principle of equality. However, double selling of real estate and double mortgage are different in various respects, as seen below.

A) The real estate sales contract is a transactional situation that most of the general public experienced, and it is paid by dividing it into down payment, intermediate payment, and balance. In order to achieve a blue for the preparation of a house, all the family's property is to be invested into the purchase fund, and the insufficient funds to purchase a house and to prepare a new house can also be often seen as being appropriated for loans, borrowed money, etc. However, there are many cases where there is a considerable interval between the payment of down payment and intermediate payment and the transfer of ownership, and in this case, the method of securing the right to the price already paid is insufficient. Therefore, there is a great need to eliminate legal uncertainty and to secure the right.

On the other hand, if a mortgage agreement does not contain a registration of establishment, it is an exception to the payment of money before the registration of establishment of mortgage, and there are many cases where the buyer agreed to establish a mortgage to secure existing debts. Generally, in the case of real estate sale, the buyer is in an unstable position than the seller, but in the case of mortgage, the creditor is in a superior position than the debtor.

B) A mortgage contract is an agreement that creates a mortgage on real estate for the purpose of security in preparation for the failure to perform the original monetary obligation, and is similar to a double selling of real estate in that it imposes an obligation to complete the registration of a right to real estate for the purpose of security. However, in a double selling of real estate, the seller who received an intermediate payment is not in the way to escape from the seller’s obligation to transfer the ownership of real estate unless the seller cancels the contract on the ground of a buyer’s nonperformance of the obligation to pay the price. In particular, the seller who received the remainder of the ownership of

On the other hand, in the case of a mortgage contract for securing the obligation, the obligor may, at any time, escape the obligee from the obligation to set up the mortgage by repaying the obligation of his own borrowed money. The two are similar to the one that is obliged to complete the registration of the right to real estate, but there is a big difference in the content and binding degree

C) In the case of double selling of real estate, the social and economic utility, which is gained through criminal sanctions such as breach of trust, is to have the buyer transfer the ownership of a specific real estate to the buyer as the first agreement. In the case of double selling of real estate, even if the buyer receives monetary damages after being aware of the value of the real estate as a specific property and expected to have the ownership transferred, it is often impossible to achieve the objective of the buyer through the sales contract. In this regard, it is difficult to deny that there is a practical need to enforce the performance of the sales contract through the punishment of breach of trust, in addition to imposing civil liability on the seller who caused nonperformance.

On the other hand, the social and economic utility of the case of mortgage contract for the guarantee of obligation is to secure the creditor's monetary claim in the case of a crime of breach of trust. Since the creditor has a major interest in collecting the value of real estate as a collateral and thereby being repaid the existing monetary claim, it is the ultimate purpose to collect the principal and interest of the existing monetary claim rather than the creation of a security right to real estate. Accordingly, even if a mortgage is not established by the debtor, the creditor is in fact to achieve the purpose of the mortgage contract, which is to receive the principal and interest of the existing monetary claim from the debtor.

3) The Majority Opinion is that the Supreme Court en banc Decision 2017Do4027 Decided double selling of real estate does not conflict with the Majority Opinion of this case. The key point of this point is the difference between the Majority Opinion and the Dissenting Opinion.

A) The above en banc decision does not use the word “liability to cooperate in registration.” That is, in the previous precedents, the position that the duty to cooperate in registration in accordance with the principle of joint application ought to be considered as another person’s business, and the duty to cooperate in preserving another person’s property in accordance with the fiduciary relationship was considered as another person’s business. The purport of the above en banc decision is that the duty to cooperate in the preservation of property does not immediately mean that the duty to cooperate in registration essential for all real estate transactions is not considered as another person’s business, and that it

In this respect, double selling of real estate and double mortgage are no problem of legal principles even if they are treated differently with regard to the establishment of the crime of breach of trust. In the case of double selling of real estate, the Supreme Court recognizes the establishment of the crime of breach of trust in consideration of our social reality. If the system of intermediate payment of real estate sales contracts is improved or the means of securing rights such as provisional registration and provisional disposition are utilized, double selling of real estate may be subject to the punishment of the crime of breach of trust. Meanwhile, an exchange or donation of real estate is similar to the sale of real estate as a contract aimed at the transfer of ownership, and in this respect, it cannot be deemed that it is directly contrary to the Majority Opinion of this case, and thus, did not decide on the appropriateness of the precedents. Accordingly, it is not appropriate to criticize

B) If a debtor is deemed to be liable for a crime of breach of trust on the ground that he/she has a duty to cooperate in the establishment of mortgage against a creditor, this is inconsistent with the Supreme Court en banc Decision 2014Do3363 Decided the reservation of real estate accord and satisfaction. The Supreme Court made it clear that the obligation to be performed under the agreement in accordance with the promise of accord and satisfaction, which transfers the ownership of real estate as security for a claim, constitutes “self-reliance”. In other words, the ultimate purpose of the reservation of accord and satisfaction is to secure the repayment of borrowed money and the obligor’s obligation to perform the registration of ownership transfer in accordance with the promise of accord and satisfaction is merely an incidental content required for the obligor to achieve the ultimate objective. In addition, such purport can also be confirmed in Supreme Court en banc Decision 2019Do9756 Decided

As above, an important ground that cannot be seen as another person’s business is that the obligor’s duty to establish a mortgage to a creditor who entered into a mortgage agreement cannot be the essential substance of a fiduciary relationship. In applying such a legal doctrine, there is no reason to place a difference depending on whether a collateral is a mortgage contract, an accord and satisfaction contract, an accord and satisfaction contract, or an object of a security is a real estate or movable property. Even if the object of a security or a security for a debt differs from the form of a security, the ultimate purpose of each agreement and the main

C) The Supreme Court en banc Decision 2017Do4027 Decided double selling of real estate still criticizes criticism that the seller’s obligation to cooperate in preserving the buyer’s property is inconsistent with the Supreme Court’s en banc Decision on double selling of movable property, real estate accord and satisfaction reservation, and double transfer of movable property, and thus, is inconsistent with the Supreme Court’s en banc Decision on double selling of movable property. However, the method of securing the performance of monetary obligation is the same as the same security right. Ultimately, the legal relationship similar to the mortgage contract at issue in the instant case is difficult to be considered as a contract for the payment of accord and satisfaction, and as long as the above Supreme Court en banc Decision is not modified, the logic of the Dissenting Opinion

In the specific form of providing real estate as collateral for mortgage, the case of borrowing money on the condition of providing collateral and providing it as collateral. However, in the case of the former, it is difficult to view that there exists a transactional practice of lending money prior to the establishment of collateral, and if the money was not received on the condition of providing collateral without the intention to provide collateral from the beginning and did not provide collateral, there is room to regard the statutory penalty as more severe fraud than the crime of breach of trust. Meanwhile, if the latter did not provide collateral, the substance of the loan would be the same as the failure to perform the general civil liability.

C. There is a legal term that the contract should be complied with. The role of the court is not only to protect the parties asserting that the contract should be complied with in accordance with the contract. In a case where the obligor seeks not to perform the contract and the obligee asserts that the contract should be performed, the court may order the obligor to perform the contract by protecting the obligee that the contract should be performed, or order the obligor to compensate for damages for the nonperformance. The role of the court is even so far.

As above, we supplement the reasoning of the Majority Opinion.

6. Opinion concurring with the Dissenting Opinion by Justice Kim Jae-hyung

The issue is whether a real estate owner can be punished for a crime of breach of trust in the event that the real estate owner agreed to establish a right to collateral security in the future of the creditor and then establishes a third party with the right to collateral security. As to this issue, I would like to supplement the Dissenting Opinion from the perspective of interpreting penal provisions, and to present my opinion on

A. First, I supplement the Dissenting Opinion from the perspective of interpreting penal provisions.

1) Penal provisions must be strictly interpreted and applied, and they shall not be excessively expanded or analogical interpretation in the direction unfavorable to the defendant. However, the interpretation of penal provisions is necessary to clarify the normative meaning so that they can be applied to specific facts in the same way as other Acts.

First of all, it is necessary to clarify the language meaning of fishing gear or sentences used by law and, at the same time, interpret it to have logical consistency by taking into account the relationship with other laws (consceptal interpretation). When it is impossible to fully grasp the meaning as a legal norm only with the language and logic of a penal provision, the meaning of a legal order must be specified by comprehensively taking into account various factors, such as the ideology of the entire legal order, functions of a penal law, legislative history, legislative intent and purpose, protected legal interests of a penal law and protection purposes of a penal law, form of an act, etc., unless it goes beyond the ordinary meaning of a penal law (see Supreme Court en banc Decision 2001Do2819, Feb. 21, 2002; Supreme Court en banc Decision 2002Do2363, Jan. 10, 2003; Supreme Court en banc Decision 2005Do65264, May 12, 2006).

2) The Majority Opinion is not consistent in interpreting the language and text of the crime of breach of trust.

In determining whether a crime of breach of trust is established, any person who is required to start from the literal meaning of “a person who administers another’s business” as referred to in Article 355(2) of the Criminal Act refers to the person who is required to do so. However, there have been any food or ambiguous and diverse opinions with regard to the meaning thereof. The Majority Opinion can be deemed limited to cases where a person who administers another’s business is acting on behalf of another person, and the narrow understanding of “processing( acting on behalf of another person)” is contrary to its literal meaning.

On the other hand, “processing” is an act on behalf of South Korea by arranging and finishing administrative affairs or the instant case in accordance with the procedures. On the other hand, “act on behalf of South Korea” is an act on behalf of South Korea. The term “processing” does not have a limited meaning that an act on behalf of South Korea, unlike acting as an agent. The term “processing” is included in “processing”, such as acting as an agent (representative), representative (representative), and office management (management) separately from acting as an agent, and may also be included in “processing”. In fact, other acts, such as acting as an agent, acting as a proxy, acting as a representative, or acting as an agent, or acting as an employee

With respect to the literal meaning of a person who administers another's business for a long time, the Supreme Court has consistently stated that "in cases where another person's business is essentially responsible for protecting or managing another person's property, and as an agent for another person's business concerning the management of property, such as delegation and employment, it refers to cases where one's own business for completing one's own transactions, such as sale and purchase, creation of security right, etc., and at the same time has a duty to cooperate in preserving another person's property" (see, e.g., Supreme Court Decisions 81Do3137, Feb. 8, 1983; 2004Do6890, Mar. 25, 2005). In other words, the Supreme Court has consistently stated that another person's business mentioned in the crime of breach of trust includes not only cases where the other person's business is performed on behalf of another person, but also cases where the other person's business has a duty to cooperate in preserving another person's property, which has already been established through a number of cases, and thus has no function changed in the Supreme Court en banc Decision 217.

The seller, who received the intermediate payment from the sale of real estate, has a duty to register the ownership of a purchaser and an obligor who received the loan from the intermediate payment, has a duty to cooperate in preserving the other party’s property at the same time as his/her business affairs to complete all transactions, and such duty is not different in that protecting the other party’s property interests is the quintinent and fundamental substance of the trust relationship. If one of the above two cases is unlawful, the other party should be denied, and the other party’s denial is inconsistent.

Unlike Supreme Court en banc Decision 2017Do4027, the Majority Opinion narrowly interpreted the literal meaning of another person’s business only when it vicariously executes another person’s business, and the debtor’s obligation to cooperate in the preservation of property to the creditor who entered into a mortgage contract is not a third person’s business. Furthermore, the Majority Opinion is silent as to whether the business of another person, as stated in the crime of breach of trust, is limited to the case where another person’s business is performed on behalf of another person, and whether the duty to establish a neighboring mortgage cannot be deemed as a duty to cooperate in the preservation of property that constitutes the essence of a fiduciary relationship. Such attitude exceeds the attitude of the Supreme Court established in relation to another person’s business.

Most of the affairs arising from statutes, legal acts, office management, and good faith principles, etc., are mixed with the nature of one’s own affairs and other’s affairs, and cannot be deemed to exist. In the event that a delegation contract cited by the Majority Opinion as a typical example of acting for another’s affairs is made for consideration, each of the obligations of the mandator and the mandatary are in a quid pro quo relationship as bilateral contract (in the case of a bilateral contract, it is the general attitude of judicial precedents that deeming that an implied agreement on the payment of remuneration exists unless otherwise expressly provided for in the fee). A mandatory is obligated to perform the duties entrusted by the mandator, but this obligation is also a representative example of the delegation contract to complete the purpose of the delegation contract in order to receive the fees from the mandator. If the attorney-at-law requested the case to the attorney, the attorney-at-law is in charge of another’s affairs and has agreed to the effect that it is contrary to the client’s property interest in the litigation procedure, such as reconciliation, etc., there is no difference in the Majority Opinion that the crime of breach of trust is established.

The Majority Opinion commits an error in narrowly interpreting another person’s business affairs on the basis of the aforementioned erroneous premise, even though the delegated clerical work cannot be seen as only another person’s business.

The Majority Opinion appears to be acting on behalf of a delegating person or an employer on the basis of a contract such as delegation or employment. However, it is unnecessary to view that a mandatory or an employee acts on behalf of a delegating person or an employer. If a mandatory or an employee works on his/her behalf and it is deemed that such act falls under the duties of a delegating person or an employee, it is sufficient to deem that a person who administers another’s business.

The reason that the Supreme Court stated that “the processing of affairs is not necessary solely to protect and manage another’s interest, and even if the nature of the affairs for another’s interest also exists, where the nature of affairs for another’s interest goes beyond the incidental and surrounding meaning, it constitutes a person who administers another’s affairs in this context.” This is because it is difficult for the Supreme Court to include only one of the affairs for another’s interest arising from contracts, etc. as above.

The Majority Opinion appears to have limited to cases where a person who administers another’s business is acting as an agent for another person’s business. However, if a literal interpretation with respect to a person who administers another’s business does not cover cases where a person is obligated to cooperate in preserving another’s property due to the literal interpretation, the foregoing Supreme Court en banc Decision 2017Do4027 Decided 207 cannot be maintained any longer.

Therefore, the view that limits the person who administers another's business to acting on behalf of another's business is different from the literal meaning of the other's business in accordance with the case to disregard the established literal meaning of the other's business or to justify conclusion.

3) The Majority Opinion is inconsistent with the legislative history of the crime of breach of trust and the teleological interpretation that considers the nature of the crime of breach of trust.

Article 355(2) of the Criminal Act provides that “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/her duty, thereby causing loss to the principal,” it is a general view that Article 442(2) of the amended Criminal Act of 1940 of Japan (Article 442(2) of the amended Criminal Act of 1940 (Article 355(2) of the Criminal Act provides that “When a person who administers another’s business commits an act in violation of one’s own or a third party’s duty, thereby causing loss to the principal and acquiring

The current criminal law of Japan stipulates that "When a person who administers the business on behalf of another person commits an act in violation of his/her duty to obtain the benefit of himself/herself or a third party or to inflict a loss on the principal, thereby causing property damage to the principal." In the case of double mortgage, the Japanese judicial precedents recognized the establishment of the crime of breach of trust on the ground that "the mortgagee has the duty to cooperate with the mortgagee until the completion of the registration, and the duty is primarily borne by the mortgagee for the mortgagee

The German Criminal Code prescribes that the subject of the crime of breach of trust is “a person who either disposes of another person’s property recognized through law, delegation by government authorities or juristic act, or abuse the authority to impose an obligation on another person, or violates the duty to take into account another’s property interests imposed by law, delegation by government authorities, juristic act or trust relationship, and thereby causes damage to a person who shall protect his/her property interests.” The German Criminal Code constitutes a crime of breach of trust in the form of including both the abuse of authority and the elements of a breach of trust. The German common theory is a special form of the elements of a breach of authority, and the elements of a breach of trust are considered as general requirements. The German Supreme Court also has the same position on the essence of the crime of breach of trust, stating that “the breach of the duty to protect another’s property interests.” Therefore, the intrinsic content of the relationship between the parties to the crime of

The above legal principles on the crime of breach of trust in Germany also directly affected the interpretation of the crime of breach of trust in Korea, and Korea's common theory and judicial precedents follow the establishment that the essence of the crime of breach of trust is an infringement on property by neglecting another's trust. In other words, the crime of breach of trust is deemed an infringement on property by the business manager who violates the duty of trust and good faith on the principal. Therefore, not the relationship between the business manager and the third party, but the establishment of the crime

The purposeological interpretation is to find the meaning of the law in accordance with the objective purpose of the law and order. The interpretation of the law does not simply repeat the fact that legislators had already taken into account, but rather find the meaning and spirit of the law oriented by legislators in consideration of the new situation.

The provisions of the Criminal Act on the crime of breach of trust only include “other person’s business” and there is no provision on what is another person’s business. The Supreme Court has established an interpretation theory that “the intrinsic substance of the crime of breach of trust is to have the duty to protect and manage other’s property based on the trust relationship,” on the basis that the essence of the crime of breach of trust is “a good faith as to trust relationship” (see, e.g., Supreme Court Decision 2010Do3532, May 10, 2012). Furthermore, the act of breach of trust includes any act that does not perform, or is expected to do, an act that does not perform, as a matter of course in light of the specific circumstances, such as the content and nature of the business, the content of the contract, or the good faith principle, or any act that does not perform as a matter of course, and thus, leaves a trust relationship with the other person (see, e.g., Supreme Court Decision 2002Do1696, Jul. 22, 2002).

Although there are cases where it is relatively easy to determine the establishment of a crime, such as theft or bodily injury, there are cases where it is difficult to determine the establishment of a crime by using a comprehensive and multilateral concept, such as interference with the exercise of rights or breach of trust. If the exercise of rights is interfered with regardless of what another person’s rights are or in any form, the scope of establishment of the crime of interference with the exercise of rights may be unlimited and broad. The crime of breach of trust requires “the person who administers another’s business shall acquire pecuniary benefits and inflict loss on the principal by performing the act of breach of trust.” The grounds for “a person who administers another’s business” include not only statutes, contracts, but also the principle of trust and good faith, and the substance of administration are diverse depending on the relationship between each party and the parties, and what is the principal duty. In various types of cases, the court has determined whether the business of another person is a fiduciary relationship that mainly serves as an essential and fundamental substance of the agreement on the crime of breach of trust. The legal relationship protected in various types of cases ought to be uniformly determined in consideration of the form and fundamental relationship between individual parties.

The Majority Opinion states that the purpose of a contract to establish a mortgage is to pay the obligation. However, payment of the obligation is not the object of a loan for consumption and is not the object of a contract to establish a mortgage. The purpose of a contract to establish a mortgage is to secure a real right to real estate through the registration of establishment of a mortgage on real estate. There is no difference between the purpose of a contract to establish a mortgage and that of a real estate by the registration of establishment of a mortgage on real estate. The Majority Opinion states that a debtor may, at any time, escape from the obligation of an obligee to establish a mortgage by repaying his/her own borrowed debt and paying the debt at any time. However, it is difficult to find out the grounds that an debtor or a real estate owner may escape from the obligation

The issue in this case is not a mortgage but a mortgage, and it is distinct from the mortgage in that it is not recognized as a appendant to the so-called extinction. In the case of the right to collateral security, even if the secured obligation is extinguished or transferred, the right to collateral security still remains (Article 357(1)2 of the Civil Code). In other words, even before the secured obligation is finalized, the right to collateral security is not extinguished even if the obligor performs the obligation arising before the secured obligation is finalized (see Supreme Court Decision 64Da1698 delivered on April 20, 1965).

The Majority Opinion appears to have deemed that the issue of double mortgage on real estate (referring to the case where a debtor, who concluded a mortgage contract and did not implement it, disposes of real estate to a third party) is similar to the pre-sale of real estate in accord (Supreme Court en banc Decision 2014Do363 Decided 201). In the case of a pre-sale of real estate in accord and satisfaction, even after the exercise of the right to full payment in advance, the debtor can be exempted from the obligation to perform the registration of ownership transfer by repaying his/her pecuniary obligation and discharging his/her obligation. However, even when a pre-sale of real estate was made, the debtor cannot at any time be exempted from the obligation to perform the registration of establishment of a mortgage (the pre-sale of real estate is stipulated in the Civil Act as an agreement on the method of performance of obligation). On the other hand, in the case of a pre-sale of real estate, the obligation to immediately establish a mortgage was created on the part of the debtor under an agreement on the "security right", and thus, the obligation to establish a mortgage cannot be seen as extinguished solely on the basis of satisfaction.

Ultimately, whether to punish a person for breach of trust in a certain type of legal relationship ought to be determined based on the objective purpose required by the legal order taking into account the legal interests protected by the crime of breach of trust. While the Criminal Act prescribes a crime of breach of trust as an important crime, the court’s duty of interpreting and applying the crime of breach of trust should not excessively expand the scope of punishment, but excessively reduce it.

It is against the legal interest of the crime of breach of trust and the established interpretation of the Supreme Court on whether the crime of breach of trust is established or not to limit the case where the other party is unable to acquire his/her rights without fulfilling his/her duties in a mutually conflicting relationship. It accords with the overall structure and purpose of the criminal law to punish the other party for breach of trust.

The parties who have entered into a contract are sufficient to perform their obligations under the contract, and there is no obligation to protect or take account of the other party’s pecuniary advantage. Accordingly, in the event of failure to perform the contract, they are merely liable for nonperformance, not liable for tort, and they are more rarely liable for tort. This is distinguished not only from cases of infringement of real rights, such as ownership, but also from cases of criminal liability when they meet the elements of criminal law.

However, the Supreme Court consistently affirmed the establishment of a crime of breach of trust with respect to double selling of real estate or double mortgage, which is evaluated as a typical act of breach of trust, among the cases in which a contractual obligation is not performed. The Supreme Court en banc Decision 2017Do4027 supra re-verifications the legal doctrine that “if the business process in question does not require only the protection and management of another’s interest, and the nature of the business for another’s interest is more important than the incidental and surrounding meaning, even though it has the nature of promoting one’s own interest, it constitutes another’s business.” The Supreme Court maintained the previous precedents recognizing double selling of real estate as a crime of breach of trust by deeming that the seller has a fiduciary relationship to protect and manage pecuniary interest in cooperation with the buyer’s property

The above precedents at the same time, one’s own business affairs, and the duty to cooperate in the other party’s acquisition of rights, also evaluated as the essential substance of the other party’s business based on a fiduciary relationship. This limited interpretation of the meaning of the text of the crime of breach of trust in consideration of the protected legal interests and purposes of the crime of breach of trust, thereby excluding simple nonperformance within the scope of punishment of breach of trust, but punishing certain cases such as double selling of real estate among the types of nonperformance. The Majority Opinion denied the establishment of the crime of breach of trust on the ground that the Supreme Court’s above-

Above all, in Supreme Court en banc Decision 2017Do4027 Decided supra, if a seller’s obligation to cooperate in the buyer’s acquisition of rights is considered as a criminal breach of trust, the same evaluation should also be made on the same type of violation of trust relationship. Therefore, the same obligation to cooperate in the acquisition of rights as double selling of real estate is the obligation to cooperate in the same way as double selling of real estate, and the act of disposal by the business manager is also deemed as a criminal breach of trust in the case of double selling of real estate, for which the business operator’s disposal of property cannot be acquired, substantially infringes on the trust relationship between the parties. The Majority Opinion separately determined the matter to be judged differently

The limitation to cases where another person executes another person's business by delegation, etc. is an agent for another person's business does not have any grounds in light of the legislative history of the crime of breach of trust and the purposeological interpretation taking into account the essence thereof and comparative studies

B. We express my opinion with the Majority Opinion on some issues raised by the supplementary opinion.

1) Whether to punish the double mortgage of real estate is a matter of interpretation and application of the crime of breach of trust. The duty of the court is to apply the provisions of the Criminal Act on the crime of breach of trust to the extent that it does not go against the Constitution. Under the legislative theory, it is difficult to deny the establishment of the crime of breach of trust on the double mortgage case for the abstract reasons that it excessively interferes with the national penal authority or infringes on the principle of private autonomy, aside from revising the method of restricting a certain case of breach of trust or

Without the provision on breach of trust, there are countries that punish the matters to be regulated by the crime of breach of trust in Korea as other punishment regulations, but the criminal law of Korea stipulates the crime of breach of trust as an important crime like Germany and Japan. Unlike Germany, unlike the case where there is no possibility of double disposal of real estate by adopting the principle of single application for the registration of real estate, there are many problems due to double disposal of real estate in Korea and Japan where there is time interval between the juristic act and the registration that are the cause of registration by adopting the principle of joint application for the registration of real estate. Unlike other countries, there is a lot of mortgage registration over the transfer registration of ownership more than the transfer registration in Korea, so the collateral collateral security

In the absence of the introduction of the notarial system on the sale and purchase of real estate, criminal involvement in double disposal has played a role of preventing double disposal and ensuring the safety of transaction. It can be deemed that the principle of private autonomy has contributed to establishing the principle of private autonomy in that it spreads the concept that contract should be observed as agreed upon.

The supplementary opinion to the majority opinion states that the reason behind the establishment of a variety of systems that can relieve civil rights has been established, and therefore the private autonomy is entrusted to the private autonomy, and that there is no need for criminal intervention. However, there is no specific answer as to whether there is a change of situation that does not require criminal intervention as to double mortgage since the Supreme Court Decision 71Do1544 Decided November 15, 1971 that affirmed the establishment of a crime of breach of trust, which is established after the Supreme Court Decision 71Do1544 Decided November 15, 1971.

The private autonomy principle, among them, the freedom of contract doctrine refers to the freedom to conclude a contract and form the content thereof. The freedom to reverse the contract does not include the freedom to violate the contract. The autonomy is not the area of autonomy even to lower the expectation of the other party who believed and acted in the promise. The right to guarantee such behavior is not found in legal order, including the Constitution.

Generally, civil remedies such as a claim for performance or compensation for breach of contract are used, but in certain cases, the State's penal authority is involved. Several criminal offenses, such as breach of trust, are crimes seeking criminal sanctions against a certain breach of contract, which is an issue in the area of private autonomy. As a typical breach of trust, the Supreme Court affirmed the establishment of breach of trust against double selling of real estate and double mortgage, which constitutes an essential infringement on a fiduciary relationship, as a typical breach of trust, and this cannot be said to be excessive intervention in the State's penal authority

2) There is no reason to treat double selling of real estate differently from double mortgage on whether breach of trust is established or not.

The concurring opinion with the Majority states that “the social and economic utility that both parties obtain through the criminal sanction of breach of trust” is different. In the case of double selling, it is necessary to enforce the performance of a contract as it is impossible to achieve the purpose of the contract only by means of monetary compensation after the fact, but it is unnecessary to impose double mortgage only because it does not secure a creditor’s monetary claim, and thus there is no need to impose criminal sanctions. However, the concurring opinion above is distinguishable from the transaction reality or the people’s legal sentiment.

Both double sale of real estate and double mortgage are the same in that the purpose of the contract cannot be achieved due to the seller or the debtor’s offense. Considering the social and economic adverse effects that the Majority Opinion denies the establishment of the crime of breach of trust with respect to double mortgage on real estate, social and economic utility through criminal sanctions on double mortgage cannot be said to be less than the case of double sale of real estate, rather than the case of double sale of real estate.

In practice, money pursuant to a loan for consumption is given and received, or at the same time, it is not possible to have another means to secure a security interest. The security interest is secured through the performance by the secured party, and there is no way to secure a security interest by the creditor himself/herself. If the secured party fails to obtain such security interest, the claim is a non-mortgaged claim and the obligor is not able to secure a security interest, it is highly likely to be a secured claim if the obligor does not have any other financial resources.

Even if an obligee has a damage claim for non-performance of obligation in addition to a loan claim against an obligor, it is not helpful for the remedy of rights. It is difficult to find out whether the obligee has the meaning of other monetary claims in a situation where the loan cannot be received.

The concurring opinion to the Majority Opinion that a creditor is always socially strong or superior in terms of the debtor’s superior position is difficult to understand the national aspect of various secured claims made in a complex social structure or the reality. For instance, it is difficult for a creditor to have agreed to set up a mortgage on the whole building at the time of completion of construction of an apartment house or officetel and to obtain a loan from a bank at the time of completion of construction of an apartment house or officetel, and thereby causing large-scale damage by establishing a mortgage. There is also a case where a buyer or a buyer of a real estate has received a loan from a bank to set a mortgage and received a loan from another bank to make a loan, and then provides or transfers a real estate to a third party. In such a case, it is difficult for a creditor to first acquire a mortgage and then provide a loan to a third party. If it is deemed that a breach of trust is not established with respect to an act of distribution, such as a seller, etc. who agreed to set a collateral, a bank will not grant a loan before it is established. Ultimately, such damage to a good debtor is bound to be a good debtor.

Although the principle of private autonomy can be seen as guaranteed because criminal punishment is not imposed on the double mortgage of real estate, the real condition of the secured loan based on trust relationship does not operate smoothly, and the debtor could not receive timely necessary loan due to loan color, which eventually result in bankruptcy.

3) A loan for consumption and a contract to establish a mortgage are separate contracts. Subsequent to a loan for consumption, criminal punishment issues arising from the act of causing the state of collateral in violation of a contract to establish a mortgage cannot be resolved retroactively.

The supplementary opinion to the majority opinion is that even if it is impossible to obtain the transfer of mortgage establishment registration due to the debtor's act of credit, the creditor can actually achieve the purpose of establishing a mortgage through a contract establishing a mortgage by receiving the secured debt from the debtor, so the creditor shall not be punished as a crime of breach of trust.

However, the establishment of a property crime under the Criminal Act ought to be determined regardless of whether the damage was compensated later. The establishment of a crime of fraud is established by deceiving a person who has the ability and intent to make a senior repayment and borrowing money, and the victim received the payment of that money later, and the establishment of a crime of fraud does not change on the ground that the victim received the payment of that money. If a debtor had an obligee omitted a creditor from an unsecured state due to double mortgage corresponding to an act of distribution, the crime of breach of trust is established, and there is no reason to change

A creditor has entered into a contract to establish a mortgage in order to acquire a security for a claim, and it is nothing more than that the purpose of the contract to establish a mortgage is achieved if he/she receives a repayment from a debtor's general property even after the collateral has been extinguished. It is nothing more than that of creating a mortgage contract itself as a security contract. Legally or economically, the acquisition and preservation of a security right is significant to the parties to the transaction, and it is nothing more than an incidental meaning only when determining whether the crime of breach of trust is established.

4) The concurring opinion with the Majority Opinion argues that punishing double mortgage of real estate as a crime of breach of trust may lead to a full-scale criminal violation of the principle of private autonomy and a civil case resulting therefrom. However, if following the foregoing concurring opinion, it is doubtful whether criminal sanctions may be recognized for any breach of contract. For example, the relationship between the representative director and the company is essentially private autonomy and is the legal relationship of employment or delegation contract. Most criminal cases, which are punished as a crime of breach of trust by the representative director by committing an act contrary to the company’s interest, are in violation of the contract. Property crimes under the Criminal Act are bound to be closely related to the civil law. In the area where private autonomy is permitted, the civil law and criminal law are each playing a role, and to which extent, whether criminal law can intervene is a matter of interpretation and application

All the above circumstances cited by the concurring opinion with the Majority Opinion cannot be the basis for denying the establishment of a crime of breach of trust against double mortgage on real estate.

C. In conclusion, in a case where a debtor who entered into a contract to establish a collateral security on real estate disposes of the real estate to a third party and thus makes it impossible or considerably difficult for the creditor to acquire the real estate, such act constitutes a crime of breach of trust as it violates the intrinsic and exclusive fiduciary relationship arising from the contract to establish a collateral security, and thus constitutes a crime of breach of trust. Such an interpretation accords with the established interpretation of the precedents recognizing a crime of breach of trust regarding double selling

As above, the Dissenting Opinion’s arguments are supplemented.

7. Opinion concurring with the Dissenting Opinion by Justice Min You-sook

A. Many the Supreme Court en banc decisions related to the debtor's double disposal and the scope of the precedents changed thereby are confusions.

The issues of the Supreme Court en banc Decision 2019Do9756 Decided February 20, 2020 are limited to the subject property as movable property, and the time of the disposal is limited to the time after the right to collateral security was established. The issues of this case are limited to the subject property as real property, and the time of the disposal is limited to the time before the mortgage is established after the loan was received. Therefore, the subject and the timing of the disposal are different from the subject and the subject and the period of the disposal in this case, so the conclusion is not consistent.

B. Meanwhile, Supreme Court en banc Decision 2017Do4027 Decided May 17, 2018, which maintained the previous judgment that a seller who received an intermediate payment in a double sale of real estate constitutes a person who administers another’s business as referred to in the crime of breach of trust.

Supreme Court en banc Decision 2018Do1584 Decided January 10, 2019, and Supreme Court Decision 2019Do13730 Decided November 28, 2019 (Supreme Court en banc Decision 2018Do1584 Decided November 28, 2019) declared the guilty of the crime of breach of trust in the event that the establishment of a mortgage on a debt-backed security was agreed to establish a mortgage on the third party, but the third party completed the establishment of a mortgage on the other party’s mortgage. The judgment of the court below in the above two cases is justified. "The obligation to establish a mortgage on the other party’s mortgage is merely an incidental content for securing the other party’s claim, and thus does not constitute another party’s business in accordance with the legal principles of the en banc Decision 2014Do363 Decided August 21, 2014." The ground for appeal is with merit.

The above two Supreme Court Decisions are included in the "Supreme Court Decisions to the same effect" where the case number is not specified among the judgments subject to the change of the majority opinion.

Although the above two Supreme Court precedents accept the judgment of the court below that recognized the crime of breach of trust against the act of voluntary disposal of real estate subject to mortgage contract without holding an explicit legal principles on double mortgage, as long as the judgment of conviction is subject to ex officio determination, the above two Supreme Court precedents held that the act of disposal of real estate to a third party without performing the obligation to register the establishment of a mortgage on the premise that the act of disposal of the real estate to a third party constitutes a crime of breach of trust is subject

In Supreme Court en banc Decision 2004Do1228 Decided November 18, 2004, the Supreme Court changed the existing precedents on whether the act of transporting passengers to a truck without obtaining a passenger transport business license, etc. constitutes a violation of the Passenger Transport Service Act, and the Supreme Court precedents which recognized a violation of the Passenger Transport Service Act without holding a separate legal principle as to the above act are also included in the modified decision.

Therefore, the majority opinion of this case is to revise the Supreme Court precedents that had been previously issued from 6 months to 1 year.

C. Even if not subject to an explicit change in the precedents, it is apparent that the above two Supreme Court precedents adopted the conclusion that the breach of trust, which has the same legal structure as that of the above Supreme Court en banc Decision 2017Do4027 Decided the previous Supreme Court, is established as identical to the double selling of real estate, is identical to that of the double selling of real estate. This attitude of the Supreme Court, even though there is no explicit decision, functions as a guiding interpretation standard for both the judgments of various levels of courts and the investigation agency. In the lower court’s practice, the argument that “the obligation to establish a mortgage according to the above Supreme Court en banc Decision 2014Do3363, supra, is not another person’s business,” and it still appears that the establishment of the breach of trust is affirmed.

The Majority Opinion’s position is as follows: (a) it is deemed that the foregoing two Supreme Court Decisions changed from the said two Supreme Court Decisions for a period of six months and less; (b) it may cause confusion to the practice of lower courts, etc.; and (c) it may bring about a reliance on the trust of the Supreme Court Decisions. It cannot be said that there was a change in the circumstances or a change in the reality of transactions that the obligor’s duty to create mortgage

As above, the Dissenting Opinion’s arguments are supplemented.

Chief Justice Kim Jong-soo (Presiding Justice)