[1] In a case where membership rights of a golf club operated with the so-called deposit membership system are transferred for the purpose of securing other obligations, whether the transferor is in the position of a person who administers the affairs related to the preservation of membership for a transferee (affirmative)

[2] The case affirming the judgment below which acknowledged the crime of breach of trust on the ground that the defendant was in the status of administering Gap's business by bearing the obligation to store and manage golf membership as a collateral in accordance with the purpose of security in case where the defendant arbitrarily sold golf membership owned by the defendant to a third party after borrowing money from Gap

[1] In the event that a certain amount of money is deposited at the time of membership and the membership is transferred for the purpose of securing other obligations, the membership is transferred from the transferor to the transferee without maintaining the identity between the transferor and the transferee. In order to preserve the membership vested in the transferee, the transferor is obligated to notify the company operating the golf course, which is a debtor, of the transfer of the transfer of the right or obtain the consent of the transfer of the right (where necessary, the transfer of the right) so that the transferee can satisfy the requirements for setting up against the debtor. Thus, the transferor is a person in charge of affairs relating to the preservation of membership on behalf of the transferee.

[2] In a case where the Defendant provided golf membership owned by the Defendant as collateral and sold it to a third party at will, the case affirming the judgment below which acknowledged the Defendant’s crime of breach of trust on the ground that the Defendant was in the status of administering the business of golf membership, by holding that the Defendant was in the status of administering the business of Party A by taking into account the fact that the Defendant and Party A entered into a security contract valid for golf membership and

[1] Article 355 (2) of the Criminal Code / [2] Article 355 (2) of the Criminal Code

Defendant

Defendant

Attorney Yang Yang-soo

Incheon District Court Decision 2011No3001 Decided November 11, 2011

The appeal is dismissed.

The grounds of appeal are examined.

1. In the event that membership rights of a golf course operated with the deposit membership system are deposited at the time of membership and transferred for the purpose of securing other obligations when such membership rights are returned, membership rights are transferred from the transferor to the transferee without maintaining their identity. In order to preserve the membership rights vested in the transferor, the transferor is obligated to notify the company operating the golf course, which is a debtor, of the transfer of the transfer of the right or obtain approval of the transfer of the right (if necessary, until the transfer of the right) so that the transferee can satisfy the requirements for setting up against the debtor. Thus, the parties to the transfer of membership rights are those in charge of affairs relating to the preservation of membership rights for the transferee.

Examining the reasoning of the judgment below in light of the records, the court below acknowledged the facts as stated in its holding, and recognized the establishment of the crime of breach of trust against the defendant who sold the golf membership of this case to a third party on the ground that the defendant and the injured party formed a security contract on the golf membership of this case, which is a security, and the defendant bears the duty to keep and manage the golf membership of this case, which is a security, in line with the purpose of security, was in the status of a person managing the business of this case. It did not err by misapprehending

2. The Defendant’s ground of appeal is that the first argument on the amount of losses incurred in the course of breach of trust is not a legitimate ground of appeal for the first time in the final appeal.

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 Il-young (Presiding Justice)