[1] In a case where a person who is obligated to create a collateral security has set up the collateral security to a third party, the method of calculating the "property profit or loss" of the crime of breach of trust

[2] The case holding that the court below erred in misapprehending the legal principles as to the amount of profit or joint mortgage under Article 3 of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes, in case where the defendant set the first priority right on real estate Gap and agreed to set the second priority right on the two real estate provided the real estate owned by the defendant as joint collateral in addition to Gap's real estate, and the second priority right on these real estate was established in the bank Eul, and the second priority right on these real estate was also established in the bank

[1] The property profit or loss of another person acquired by a person who is liable for establishing a right to collateral security against another person is equivalent to the value of the collateral which is lost by using it as a collateral for transaction with a third person among the value of the collateral of the right to collateral security established at the intervals of the third person. In computing the value of the collateral, where there remains the value of the collateral even after the establishment of the right to collateral security against the third person, the portion of the collateral should not be included in property profit or loss. In addition, where several real estates are offered as a joint collateral, if the right to collateral is exercised first with respect to one of the real estates, the senior creditor bears each secured claim according to the ratio of the price of the collateral between the real estates being jointly secured, even if there is a right to obtain a preferential reimbursement within the maximum amount of the collateral security. Thus, it is reasonable to calculate the value of the collateral on the secured claim of the real estate which is jointly secured by the joint collateral

[2] In a case where the Defendant established the first priority collective security right with respect to the real estate “A” and agreed to establish the second priority collective security right with respect to the real estate owned by the Defendant as well as the first priority collective security right, and thereafter, set the first priority collective security right with respect to the two real estate acquired by the Defendant as well as the second priority collective security right with respect to the real estate, the case holding that the lower court determined that the amount of profit of the Defendant’s property acquired through the Defendant’s breach of trust is the collateral value of the real estate lost by the Defendant’s establishment of the second priority collective security right with respect to the bank “B”, and that the remaining value of the real estate remains after the Defendant’s breach of trust should be deducted when calculating the amount of profit on the property, and that the lower court determined that the amount calculated by deducting the first priority collective security right amount from the amount calculated by dividing the maximum debt amount of the real estate acquired by the Defendant’s breach of trust by the second priority collective security right with respect to the remaining value of the real estate after deducting the remaining maximum debt amount of the above real estate from the market value calculated by the aggregate amount.

[1] Article 355 (2) of the Criminal Code / [2] Article 355 (2) of the Criminal Code, Article 3 of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes

[1] Supreme Court Decision 71Da513, 514 Decided June 22, 1971 (Gong1990Sang, 1194) Supreme Court Decision 2004Do5102 Decided June 15, 2006, Supreme Court Decision 2008Do9213 Decided September 24, 2009 (Gong2009Ha, 1803))

Defendant

Defendant

Attorney Lee Dong-ho

Gwangju High Court ( Jeonju) Decision 2009No97 Decided September 18, 2009

The judgment below is reversed, and the case is remanded to the Gwangju High Court.

The grounds of appeal are examined.

1. Regarding ground of appeal No. 1

According to the reasoning of the judgment below, the court below acknowledged that the objective exchange value of the real estate of this case was about KRW 1,460,579,600 at the time of committing the crime of this case according to the appraisal report submitted by the police and the court of first instance as reference materials by the defense counsel of the defendant at the court of first instance.

Examining the lower court’s judgment and the first instance court’s statement in light of the police officer of Nonindicted Party 1 and the statement in the first instance court, the lower court’s determination on the above market price is acceptable.

Therefore, the judgment of the court below which accepted the above appraisal report which did not undergo an examination of evidence does not contain any errors of law affecting the conclusion of the judgment. Thus, the ground of appeal that the court below violated the principle of evidence judgment or the rules of evidence cannot be accepted.

2. As to the grounds of appeal Nos. 2 and 3

The lower court recognized that the amount of profit from the Defendant’s crime of this case was KRW 550,579,60,000, which is equivalent to the remaining security value, after deducting the maximum amount of debt of the first-class collateral security from the market value of KRW 1,460,579,00 at the time of the crime, and maintained the first instance court that applied Article 3 of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes to the Defendant.

However, it is difficult to accept the calculation of the amount of profit in the first instance court maintained by the court below for the following reasons.

Any property profit or loss of another person acquired by a person liable for establishing a right to collateral security against another person is equivalent to the value of the collateral which is lost by using it as a collateral for transaction with a third person among the value of the collateral provided by the right to collateral security at the time of establishment of the right to collateral security to the third person. In calculating the value of the collateral, if there remains any value of the collateral even after the establishment of the right to collateral security against the third person (see Supreme Court Decision 2008Do9213, Sept. 24, 2009). In addition, where several real estate are provided as joint collateral, if the right to preferential payment for the total amount of the collateral is exercised first, even if there is a right to preferential payment for the total amount of the collateral within the maximum amount of the collateral security, it is reasonable to calculate the value of the collateral security for the secured claim secured by the joint collateral at the ratio of the value of the real estate secured (see Supreme Court Decision 2008Do92154, Jun. 24, 2009).

According to the reasoning of the judgment of the court of first instance maintained by the court below and the record, the defendant set up a first-class collateral with respect to the real estate in this case and agreed to set up a second-class collateral with respect to the victim's future. However, on September 30, 2005, the defendant set up a second-class collateral with respect to the real estate in addition to the real estate in this case as well as the real estate located in the defendant's possession as a joint collateral with respect to the real estate in addition to the real estate in this case, the amount of the first-class collateral with respect to the second-class maximum debt amount of the non-indicted 2 bank in the future. On the same day, the defendant set up a second-class collateral with respect to the real estate in this case and the real estate located in the real estate in this case as well as the second-class collateral with the maximum debt amount of the bank in Japan 68,723,200 UN (the equivalent amount of the second-class collateral with respect to

In light of the aforementioned facts in light of the legal principles as seen earlier, the amount of property profit from the Defendant’s crime of this case is the value of the real estate in this case which the Defendant lost by establishing and granting the second priority mortgage to Nonindicted Bank 2, out of the maximum debt amount of the right to collateral security that the Defendant had agreed to set up against the victim. If the remainder of the real estate remains after the Defendant’s act of breach of trust in this case, even after the Defendant’s act of breach of trust in this case, this portion shall be deducted when calculating the amount of property profit. Furthermore, the total value of the real estate in this case is the amount calculated by deducting the corresponding amount of the real estate from the market value to the amount calculated by dividing the maximum debt amount of the right to collateral security in this case, which was lost by the Defendant’s act of breach of trust, to the amount calculated by deducting the remaining value of the real estate in this case from the value of the real estate in this case which was lost by the Defendant’s act of breach of trust in this case, among the maximum debt amount of the right to collateral security.

Therefore, the court below should decide whether to apply Article 3 of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes, depending on whether the amount of profit is 500 million won or more after further deliberation as to the value of the real estate in this case as well as the remaining value of the collateral as to the real estate after the crime in this case. However, the court below judged that the amount of profit in property as a result of the crime in this case was the amount which deducts the maximum amount of debt of the first priority mortgage from the market price of the real estate in this case and maintained the first instance court applying the Act on the Aggravated Punishment, etc. of Specific Economic Crimes. Thus, the court below erred by misapprehending the legal principles on the amount of profit or joint mortgage as prescribed in Article 3 of the Act on the Aggravated Punishment, etc.

Therefore, there is a justifiable ground for appeal pointing this out.

3. Conclusion

Therefore, without examining the remaining grounds of appeal, the judgment of the court below is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Nung-hwan (Presiding Justice)