In the event that collateral is disposed of at an unreasonably salted price due to the execution of the right to collateral security, whether it constitutes a breach of trust (negative)

Since the act of a mortgagee disposing of collateral in order to exercise the security right at the expiration of the due date is the competence given to the mortgagee pursuant to the collateral contract, it cannot be deemed that it belongs to his own business affairs or business affairs of another debtor who is the mortgagee, and therefore, in order to exercise the security right, the mortgagee’s obligation to dispose of the collateral at the market price is a civil liability under the collateral contract, and is not a contractual obligation under the Criminal Act, and thus, the breach of trust is not established.

Article 355(2) of the Criminal Act; Article 372 of the Civil Act

Supreme Court Decision 85Do1493 delivered on November 26, 1985 (Binding Force Agreement)

Defendant 1 and one other

Prosecutor

Attorney Cho Jin-jin (for the defendant 1):

Busan District Court Decision 86No438 delivered on October 24, 1986

The appeal is dismissed.

As to the Grounds of Appeal:

In the case of settlement of accounts of transfer, between the two cases, where the proceeds from the realization of a security right and the proceeds from the realization of a security right are appropriated for the repayment of the principal and interest of a claim and the expenses incurred in the exercise of a security right, and the remainder of proceeds from the realization of a security right or the proceeds from the realization of a security right are the obligation to return the proceeds from the realization of a security right to the secured party according to a security contract. As such, the obligation to perform such obligation is the obligation to pay the proceeds from the realization of a security right, and the obligation to pay the proceeds from the realization of a security right is the obligation to pay the secured party, and it cannot be deemed that such obligation belongs to the business of

The view of the above precedents is that the act of a mortgagee to dispose of collateral in order to exercise the security right at the expiration of the due date is an authorized power given to the mortgagee under a security contract, and thus it cannot be deemed that it constitutes one’s own business affairs or business affairs of another debtor, the lender. Therefore, in order to exercise the security right, the mortgagee’s obligation to dispose of collateral in accordance with the market price is a civil liability under the security contract.

Therefore, since a mortgagee has a duty under the Criminal Act to make an appropriate realization according to the market price at the time when the mortgagee exercises a security right, the previous party member's decision (which was in conflict with the theoretical view of the above en banc Decision 79Do127 delivered on June 26, 197 and 76Do4180 delivered on May 24, 197) that the breach of trust is established if the mortgagee violated the obligation. Therefore, it shall be deemed that the above decision was destroyed by the above Supreme Court decision.

Therefore, the court below held that the defendants' act of disposing of the above forest land of KRW 182,00,00,000 among the above forest land 8,60,000, which was provided as collateral for transfer by non-indicted 182,000 and was entrusted with the right to dispose of the above forest land by the creditors prior to the provisional registration for claiming ownership transfer registration and settlement prior to the filing of a lawsuit, and did not pay the above Kim Y, 19, while discussing the above Kim Y, etc. and the method of principal and interest payment and the disposition of forest land, etc., the above act of disposing of the above forest land of KRW 8,140,00,00,000 among the above forest land of this case 8,140,000,000 among the above forest land of this case and 182,000,0000,000,0000,000 won, does not constitute the crime of breach of trust by the debtor for the purpose of trust management of trust.

Therefore, the remaining grounds of appeal (if the court below, as a family, the mortgagee's disposal of the transferred property belongs to another person's business, it is not necessary to examine the judgment that the defendants cannot be found to have disposed of the forest land of this case at a price much higher than the market price, and the appeal is without merit. Therefore, it is dismissed and it is so decided as per Disposition by the assent of all participating judges.

Justices Kim Yong-ju (Presiding Justice)