[1] Whether the so-called seller's bona fide contract title trust constitutes a person who administers another's business (negative)

[2] The case holding that the crime of occupational breach of trust is not established on the ground that the trustee refused a request for return of the truster on the real estate acquired under the contract title trust agreement, and completed the registration of ownership transfer under the name

[1] Articles 35(2) and 356 of the Criminal Act; Article 4(1) of the Act on the Registration of Real Estate under Actual Titleholder’s Name / [2] Articles 355(2) and 356 of the Criminal Act; Article 4(1) of the Act on the Registration of Real Estate under Actual Titleholder’s Name

[1] Supreme Court Decision 2001Do2722 Delivered on September 25, 2001, Supreme Court Decision 2001Do2785 Delivered on April 12, 2002

Defendant

Prosecutor

Seoul District Court Decision 2003No4069 Delivered on October 29, 2003

The appeal is dismissed.

We examine the grounds of appeal.

1. As to the facts of this case that "the defendant, a general director of the damage company, entered into a contract for the purchase of the right to sell the apartment of this case under the direction of the non-indicted, who is the representative director, and acquired and kept the right to sell the apartment of this case under the name of the defendant, and did not perform his duties such as returning documents related to the right to sell the apartment of this case while the defendant left the damaged company, and instead, completed the registration of ownership transfer under the name of the defendant, thereby acquiring property profits equivalent to 80 million won and causing damage equivalent to the same amount to the damaged company," the court below determined that the content of the agreement between the defendant and the damaged company should be deemed as a title trust agreement for the apartment of this case as well as the ownership itself, unless there is any evidence to prove that the owner and the seller of the apartment of this case knew of the above title trust agreement.

According to the records, the above fact-finding and decision of the court below is just, and there is no error of misunderstanding of facts or misunderstanding of legal principles, and this part of the ground of appeal

2. A trust agreement was concluded between a truster and a trustee, and accordingly, a trustee, when concluding a trust agreement on real estate between the parties to the agreement and the owner who was unaware of the fact that the trust agreement was concluded, has entirely acquired the ownership of the real estate in relation to the truster, and only the truster bears the duty to return unjust enrichment upon invalidation of the trust agreement to the truster. Such duty to return unjust enrichment is not only the ordinary obligation to the truster due to the invalidation of the trust agreement. As long as a trust agreement between the truster and the trustee becomes null and void, barring any special circumstance, barring any special circumstance, it is deemed that the delegation agreement between the truster and the trustee on the purchase of real estate, which was made with the title trust agreement, is null and void, and thus, it cannot be deemed that the trustee is a person in a position to preserve and manage the truster’s property, and thus, the trustee is not in a position to handle another person’s business (see Supreme Court Decisions 2001Do2722, Sep. 25, 2001; 201Do41.).

Based on its findings, the court below rendered a not-guilty verdict against the defendant to the purport that the crime of occupational breach of trust is not established by rejecting a request for return of the damage company, which is a trust party, and completing the registration of ownership transfer under the name of the defendant, since the defendant's status as the purchaser of the apartment of this case and the right as the purchaser of the documents related to the right to sell the apartment of this case acquired based on the contract for purchase of the right to sell the apartment of this case concluded under the contract for sale under the contract for title trust of this case. In light of the above legal principles and records, such judgment of the court below is justifiable, and there is no illegality

The allegation in the grounds of appeal that the Act on the Registration of Real Estate under Actual Titleholder’s Name shall not apply to the instant title trust agreement, or even if the said title trust agreement is applicable to household affairs, it shall be deemed as falling under the so-called middle omission type title trust. Therefore, it cannot be accepted on the premise that the said title trust agreement only

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

Justices Park Jae- Jae (Presiding Justice)