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| TITLE | Supreme Court en banc Decision 2017Do4027 Decided May 17, 2018 【Violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Breach of Trust); Violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Bribing)】 [full Text] |
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[1] In a real estate sale contract where the performance of contract has reached a full-fledged stage with the delivery of an intermediate payment, whether from that moment a seller can be deemed “a person who administers another’s business,” as stated in the crime of breach of trust (affirmative), and in such a case where the seller in such a position, prior to transferring the ownership of real estate to a buyer in accordance with the terms of contract, disposes of the said real estate to a third party and completes registration thereof in the name of the third party, whether a criminal breach of trust is established (affirmative) [2] In the case where the Defendant, a seller of real estate, who signed a real estate sales contract with Buyer A and received both a down payment and an intermediate payment from Buyer A, sold the same real estate, the object of sales, to Buyer B shortly thereafter, and was indicted on the charge of violating the former Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Breach of Trust), the case holding that: (a) despite the fact that the Defendant’s act of betraying the fiduciary relationship with Buyer A was deemed an occupational breach of trust, establishing the crime of breach of trust, as well as the recognition of criminal intent on the part of the Defendant to breach trust and obtain illegal gains therefrom, (b) the lower court deemed otherwise and acquitted the Defendant of the facts charged, (c) and, in so doing, erred by misapprehending the legal principle regarding “a person who administers another’s business” and the criminal intent referred to in the crime of breach of trust |
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