A. Standard for determining the identity of the facts charged

(b) The mortgagee's failure to settle accounts and the nature of breach of trust;

A. Even if the identity of the facts charged is somewhat different from the date and place of the crime, the attitude of the crime, or the amount of damage, etc., the same social factual relationship, which serves as the basis of the fact, is maintained as it is in basic respect.

B. In a case where the transfer for security is a settlement of accounts, and in a case where the transfer for security is a settlement of accounts, the secured party’s execution of the security right at the expiration of the due date for repayment of the principal and interest of the claim and the expenses incurred in exercising the security right, and the remainder, if any, shall be appropriated for the repayment of the principal and interest of the claim and the expenses incurred in exercising the security right, and the obligation to return the remainder to the secured party under the security contract is the obligation to pay the principal and interest. Therefore, the obligation to perform the obligation shall not be deemed to belong

A. Article 254 of the Criminal Procedure Act

B. Supreme Court Decision 85Do1493 delivered on November 26, 1985

Defendant 1 and one other

Fixed training

Defendants

Attorney Kim Jong-hee, Park Jong-hee

Seoul Criminal Court Decision 84No6130 decided Feb. 22, 1985

The judgment of the court below is reversed, and the case is remanded to the Panel Division of the Seoul Criminal Court.

The defendant's ground of appeal No. 1 is examined.

The identity of the facts charged is somewhat different from the date and place of the crime, the attitude of the crime, or the amount of damage, etc., but the social factual relations, which form the basis of the fact, are maintained in the same way as it is basic.

According to the reasoning of the judgment below, the court below maintained the first instance court's measure which permitted the prosecutor's application for changes in indictment as stated in its reasoning, and there is no error in the misapprehension of legal principles as to the identity of the facts charged, such as the theory of lawsuit.

The grounds of appeal No. 2 are examined.

According to the reasoning of the judgment of the court below and the judgment of the court of first instance cited by the court below, if the defendants completed the registration of ownership transfer of the real estate in the future of defendant 1 to secure a claim against the victim and disposed of it to another person, the defendants are subject to the crime of breach of trust on the ground that the defendants did not refund the remainder of the judgment in violation of their duties despite the fact that there was a duty to return the money

However, in the case where the transfer for security is a settlement of accounts, and where the transfer for security is a settlement of accounts, it does not constitute a crime of breach of trust if the secured party fails to perform his/her obligation to pay the principal and interest on bonds or the appraised value by exercising the security right at the expiration of the due date, and in the case of the remainder, the obligation to return the proceeds to the secured party is the obligation to pay the principal and interest on bonds and the expenses for exercise of the security right. Thus, since the obligation to pay the secured party is the obligation to pay the secured party under a security contract, the obligation to perform the obligation shall be deemed as falling under his/her own business and shall not be deemed as falling under the business of the debtor, who

Ultimately, the court below's decision that deemed the defendants' obligation to settle the instant case back to the handling of another's business, which affected the judgment by misunderstanding the nature of the duty to settle accounts borne by the mortgagee and the legal principles on the person who administers another's business, which is a constituent element of the crime of breach of trust, and thus pointing this out.

Therefore, without further proceeding to decide on the remaining grounds of appeal, the judgment below is reversed, and the case is remanded to the Panel Division of the Seoul Criminal Court. It is so decided as per Disposition by the assent of all participating Justices.

Justices Lee Byung-su (Presiding Justice)