Whether a crime of breach of trust is established in case where a debtor who has concluded a sales contract by providing a creditor with a unregistered building owned by him/her for a security of obligation, has made a provisional registration as a security for obligation to a third party after completing

Where an obligor provides a creditor with unregistered building owned by an obligor as security for a loan obligation, and concludes a sales contract for it, the obligor is obligated to perform the procedure for registration of ownership transfer of the said building upon the performance of the above sales contract by the obligee’s security right. If an obligor liable for such obligation, once he/she made registration of ownership transfer on the said building in his/her name, and then made provisional registration of the same person as security for a loan obligation to a third party against the intent of the said obligee, it constitutes an act of breach of duty in relation

Article 355(2) of the Criminal Act

Defendant

Defendant

Attorney Lee Han-soo

Seoul Criminal Court Decision 86No5482 delivered on July 10, 1987

The appeal is dismissed.

Defendant’s defense counsel’s grounds of appeal

In light of the records, the court below established that the defendant prepared a sales contract which provides the unregistered building of this case owned by the defendant as a security for a loan obligation against the non-indicted credit, and at the same time prepares a protocol of settlement prior to the filing of a lawsuit, if the above loan repayment becomes due, the defendant will order the above building to be ordered. In light of the records, the court below's above measures are just and there is no error of law of misunderstanding of facts, such as the theory of lawsuit.

As above, in a case where the obligor provided the obligee with unregistered buildings owned by the obligor as security for the obligation to borrow money and concluded a sales contract therefor, the obligor is obligated to perform the procedure for the registration of ownership transfer of the above building upon the performance of the obligee’s security right. Thus, in a case where the obligor, as stated in the judgment of the first instance court cited by the lower court by the Defendant, registered the ownership transfer of the above building in his name, and registered the provisional registration of the name as security for the obligation to borrow money as security against the intent of the above credit extension, it constitutes an act of breach of duty in relation to the above credit extension, and its criminal intent is sufficiently recognized, and thus satisfying the elements for

The decision of the court below to the same purport is just, and there is no error of law by misapprehending the legal principles of the crime of breach of trust or by misunderstanding the facts as to the criminal intent.

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

Justices Lee Jae-seok (Presiding Justice)