In case where a real estate seller has established provisional registration against a third party for his own financing (affirmative)

If a real estate seller has made a provisional registration to a third party for the security of loan against the buyer's will, the crime of breach of trust is established in relation to the buyer.

Article 355(2) of the Criminal Act

Defendant

Seoul Criminal Court Decision 81No2362 delivered on October 28, 1981

The appeal is dismissed.

We examine the Defendant’s grounds of appeal.

1. The criminal intent of the crime of breach of trust is sufficient when a person who administers another's business commits an act in violation of one's duty and obtains a benefit from one's own or a third party and causes a loss to the principal. Since it is not a crime of breach of trust, it is not necessary to do so for the purpose as a subjective element. Thus, it cannot be adopted as an independent opinion that the defendant's act does not meet the element of the crime of breach of trust on the ground that the defendant did not have an intention to obtain a benefit and inflict a loss

2. When the crime of breach of trust is committed, it means the reduction of property value and includes not only the case of causing actual damage, but also the case of causing the risk of actual damage, and so long as the damage to the principal was acknowledged, it does not affect the establishment of the crime of breach of trust even if the damage was not specific, or there was some error in the amount of recognition. According to evidence, the judgment of the court of first instance maintained by the court below, despite the duty to implement the transfer registration procedure on the land of the same branch, the defendant in collusion with the non-indicted 1 for the sale and purchase of the land in violation of his duty, which is stated in the judgment of the court below, and thus, it did not affect the above provisional registration because it did not affect the non-indicted 1's own property value, or it did not affect the above provisional registration because it did not constitute a crime of breach of trust, it is justified in the judgment below to acknowledge that the above provisional registration had been executed in violation of the duty of the non-indicted 1's claim for the above provisional registration, and it should be justified in its conclusion that the above provisional registration will be paid the above land.

Therefore, the appeal is dismissed as it is without merit. It is so decided as per Disposition by the assent of all participating judges.

Justices Kang Young-young (Presiding Justice)