(a) The nature of an apartment sale contract concluded as a security for payment of construction expenses to the contractor for the construction project;

(b) Where the contractor of a project transfers an apartment house to be sold in units as a security for the construction cost because he/she does not remaining construction, whether it is a breach of trust;

A. An apartment sale contract entered into in the form of an accord and satisfaction promise in order to secure the balance of the construction cost of the already completed work and the payment of the remaining construction cost, even if the contractor entered into an agreement to secure the balance of the unclaimed construction cost, even if the contractor fails to perform his/her obligation on the remaining construction work, the contractor cannot be deemed to have agreed to transfer the ownership of the apartment to the contractor to guarantee the payment of the balance of the unconditioned construction cost, and rather, it is consistent with the intention of the party concerned to view that the contractor was an accord and satisfaction promise under the condition that the payment of the balance of the construction cost is suspended upon the completion of the remaining construction work by the contractor.

B. In the event that the contractor has agreed to sell an apartment to the contractor as a security for the construction cost, unless the contractor completes the remaining construction work, the above sales contract takes effect due to the non-performance of the terms and conditions, and the contractor has no obligation to register the ownership transfer. Therefore, if the contractor has renounced the remaining construction work, the contractor may not be deemed to constitute a crime of breach of trust even if the contractor has disposed of the apartment to a third party without the registration of ownership transfer after the registration of preservation

A. Articles 606, 607, and 664 of the Civil Act; Article 355(2) of the Criminal Act

Defendant

Defendant

Daegu District Court Decision 83No2412 delivered on February 29, 1984

The judgment below is reversed, and the case is remanded to Daegu District Court Panel Division.

We examine the Defendant’s grounds of appeal.

The judgment of the court below held that the sales contract for three-generation apartment units on December 8, 1981 between the defendant and the non-indicted Clerks was valid to the extent that the defendant secured the balance of the construction cost of the construction cost of the 3,4,5th apartment unit constructed by the defendant, and the above 3,5th floor of the 5th floor was completed, and the remaining construction cost of the 5th floor (the 5th floor columns and rooftop sections) was concluded in the form of a promise for payment in kind to secure the remainder of the construction cost up to the 5th floor and the construction cost of the remaining construction in the future, and the above 1982 does not have all the remaining construction, but the sales contract is still valid to the extent that the defendant secured the balance of the construction cost of the 3rd apartment unit unit unit unit unit unit constructed by the defendant to the 5th floor unit, and thus, it constitutes the so-called crime of breach of trust by the defendant to the third party after the registration of the preservation of the 3rd household unit.

However, according to the defendant's assertion that the sale price was 33 million won in the original contract at the time of sale in lots which was concluded as security for the payment of the construction cost. According to the defendant's argument, if the defendant's argument is true, the balance of the original construction cost which the defendant has not settled at the time of sale in lots shall be presumed to have been 11 million won or 13 million won at the time of the conclusion of the sale in lots. In light of the circumstances of the original contract at the time of sale in lots between the defendant and the contractor's book, the sale in lots was concluded to secure the payment of balance of the unpaid construction cost until now, even if the defendant did not perform his obligation on the remaining construction cost, the defendant did not have an obligation to register the sale in lots to the contractor at the time of sale in lots to secure the payment of balance of the original construction cost, so it cannot be viewed that the contract did not have an effect of the contractor's duty to register the remainder of the sale in lots at the time of sale in lots to the court below's decision.

Therefore, 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.

Justices Yoon Il-young (Presiding Justice)