Open Decision Ledger · Economic crime
Whether Breach of Trust Is Established by Taking Out a Loan Secured on the Building Site after Units Have Been Sold, and the Effect of an Error in Calculating the Amount of Loss
Translated from the Korean original. Read the Korean
Supreme Court, Oct. 24, 1989, 89Do641 (judgment)
Case name: 특정경제범죄가중처벌등에관한법률위반,배임,부정수표단속법위반
Official text on the National Law Information Center
Question
Where a person who has sold units in a building under construction and received down payments and interim payments creates a maximum amount mortgage over the site and obtains a loan, is the offense of breach of trust established, and does a miscalculation of the amount of loss affect the application of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes?
Holding
Where a person who has received the sale price sets a maximum amount mortgage over the site and obtains a loan, the offense of breach of trust arises even if the person harbored an undisclosed intention to cancel the mortgage later, or even if this is a customary practice in the construction industry. The Supreme Court viewed the amount of loss as the amount of the secured obligations, and held that even if the calculation was erroneous, it had no effect on the outcome of the judgment so long as the correct amount falls under any of the subparagraphs of Article 3 (1) of the same Act.
Summary of the holding, verbatim
분양한 건물의 공사진행기간동안 건물부지를 담보하여 융자를 받는 것이 설사 건설업계의 관례라고 하더라도 배임죄의 성립에는 영향이 없다.
Unofficial English translation
Even if it is a practice in the construction industry to obtain loans by providing the building site as collateral during the period of construction of the building units sold, this has no bearing on the establishment of the offense of breach of trust.
Disposition
Dismissed Stated in the decision
상고를 기각한다.
Unofficial English translation
The appeal is dismissed.
Form of the test
Existing test applied Read from the decision
손해액이 구체적으로 명백하게 산정되지 않았더라도 배임죄의 성립에는 영향이 없고
Unofficial English translation
even if the amount of loss was not specifically and clearly calculated, this has no bearing on the establishment of the offense of breach of trust, and
Factors
- 건물완공후 그 건물과 대지에 관하여 피해자들에게 소유권이전등기를 경료해 줄 업무상의 임무
- 실해발생의 위험을 초래케 할 경우도 포함하는 것이므로
- 그 근저당권에 의하여 담보되는 피담보채무 상당액
- 특정경제범죄가중처벌등에관한법률 제3조 제1항 각호 중 어느 것에 해당한다면
Unofficial English translation
• the duty in the course of business to effect ownership registration in favor of the victims with respect to the building and the site upon completion of the building
• including cases where it creates the risk of the actual occurrence of harm
• the amount of the secured debt corresponding to the debt secured by that maximum amount mortgage
• which of the subparagraphs of Article 3 (1) of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes it falls under
Relation to precedent
Follows earlier decisions Stated in the decision
대법원 1982.11.23. 선고 82도2215 판결
Unofficial English translation
Supreme Court Decision 82Do2215 decided November 23, 1982
Decisions referred to
나. 대법원 1980.9.9. 선고 79도2637 판결 / 다. 대법원 1982.11.23. 선고 82도2215 판결
Burden of proof
Not addressed Not in the decision
Open question and revisit condition
How would the arising of the offense of breach of trust be affected if, at the time of the sale contract, there was an agreement between the contracting parties that funds could be raised by using the building site as collateral?
We will re-examine this reading if the case law on whether a seller of real estate or a seller of units qualifies as a person who handles the affairs of another changes.
Cross-family AI independent reading & axis check
7 of 8 axes matched GPT-6 Astra (OpenAI, codex CLI) · 2026-10-16
When compared with an independent reading by another family of AI (GPT-6 Astra), which read the original text alone without seeing the first reading, 7 of the 8 axes agreed, and the readings diverged on the 8th axis (Open question and revisit condition).
Axis 8 (Open question and revisit condition): Primary “How would the arising of the offense of breach of trust be affected if, at the time of the sale contract, there was an agreement between the contracting parties that funds could be raised by using the building site as collateral?” vs Independent “Even where the amount of the secured obligations under the maximum amount mortgage exceeds the collateral value of the real estate, is the buyer's amount of loss assessed as the entire amount of the secured obligations?”
The first reading asks about the effect of the parties' agreement regarding the collateral loan, while the independent reading asks about the scope for assessing the amount of loss for secured obligations exceeding the collateral value.
분양한 건물의 공사진행기간동안 건물부지를 담보하여 융자를 받는 것이 설사 건설업계의 관례라고 하더라도 배임죄의 성립에는 영향이 없다.Raw responses and comparison record: Protocol · Blind readings (JSONL) · Axis comparison (JSONL) · SHA-256 (JSON)
Lower-court contrast & scope of application
Lower-court reading vs. Supreme Court holding
Lower-court context: The court below found the charge of breach of trust guilty and, by calculating the portion attributable to the land out of the amounts of the sale price already paid by the victims, assessed the amount of loss at a total of 176,561,365 won and applied subparagraph 3 of Article 3 (1) of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes.
Supreme Court standard: The Supreme Court pointed out that, since the amount of loss is the amount of the secured obligations under the maximum amount mortgage, the method of calculation adopted by the court below was erroneous. It held, however, that this had no bearing on the applicability of subparagraph 3 of the same Article, given that the total amount of the loans corresponding to the building site portions sold to the victims was approximately 186,704,184 won, and it therefore upheld the conclusion of the court below and dismissed the final appeal.
Distinguishing conditions
- Where, at the time of the sale contract, there was an agreement between the contracting parties that the seller could raise funds by using the building site as collateral
- Where the creation of the security interest occurs at a stage before the down payments and intermediate payments have been received, so that the duty in the course of business to effect the transfer registration of ownership has not yet arisen
- Where the amount of loss or gain correctly recalculated falls within a different bracket from the subparagraph of Article 3 (1) of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes applied by the court below
Record verification notes
Before asserting the same conclusion, it should be checked whether the sale contract or the agreement between the parties contains any provision permitting a collateral loan on the site, and whether the amount of loss recalculated as the amount of the secured obligations falls outside the monetary bracket of the provision applied.
From the official text
Points at issue
가. 건축중인 건물을 분양한 후 그 건물부지를 담보로 융자를 받은 경우 배임죄의 성부(적극) 나. 배임죄로 인한 손해액 계산이 잘못되었으나 올바른 금액이 특정경제범죄가중처벌등에관한법률 제3조 제1항 각호에 해당하는 경우 적용 법조항 다. 부동산의 매도인이 매수인에게 소유권이전등기를 넘겨주기 전에 그 부동산에 근저당권을 설정하고 제3자로부터 금원을 차용한 경우 매수인이 입은 손해액
Unofficial English translation
(a) Whether the offense of breach of trust is established (affirmative) where a person, after selling units in a building under construction, obtains a loan using the building site as collateral / (b) Applicable statutory provision where the amount of loss caused by the offense of breach of trust was calculated incorrectly but the correct amount falls under any of the subparagraphs of Article 3 (1) of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes / (c) Amount of loss suffered by a purchaser where the seller of real property, before transferring ownership registration to the purchaser, establishes a maximum amount mortgage on the real property and borrows money from a third party
Summary of the holding
가. 피고인이 신축중에 있던 건물을 피해자들에게 분양하고 피해자들로부터 계약금과 중도금을 받았으므로 건물완공후 그 건물과 대지에 관하여 피해자들에게 소유권이전등기를 경료해 줄 업무상의 임무가 있음에도 이에 위배하여 위 대지에 관하여 근저당권을 설정하고 대출을 받았다면, 피고인에게 공사완성후 위 근자당권설정등기를 말소하여 피해자들에게 소유권이전등기를 해 주려는 내심의 의사가 있었다거나 분양한 건물의 공사진행기간동안 건물부지를 담보하여 융자를 받는 것이 설사 건설업계의 관례라고 하더라도 배임죄의 성립에는 영향이 없다. 나. 배임죄에서 손해를 가한 때라 함은 실해발생의 위험을 초래케 할 경우도 포함하는 것이므로 손해액이 구체적으로 명백하게 산정되지 않았더라도 배임죄의 성립에는 영향이 없고 설사 손해액이나 이득액의 계산에 잘못이 있더라도 그 금액이 특정경제범죄가중처벌등에관한법률 제3조 제1항 각호 중 어느 것에 해당한다면 그 잘못은 같은 법조항을 적용한 판결의 결과에는 영향이 없다. 다. 부동산의 매도인이 매수인 앞으로 소유권이전등기를 경료하여 주기 이전에 제3자로부터 금원을 차용하고 그 담보로 근저당권설정등기를 해 준 경우 매수인이 입은 손해는 그 근저당권에 의하여 담보되는 피담보채무 상당액이다.
Order
상고를 기각한다.
Unofficial English translation
The appeal is dismissed.
Provisions referred to
형법 제355조 제2항, 특정경제범죄가중처벌등에관한법률 제3조 제1항
Read 2026-10-16 · Cross-read 2026-10-16. All quotes matched against the official text. The Chinese-character placeholders the court used for anonymised parties are given in their Korean readings, and parenthetical Chinese-character glosses are omitted.
Every entry is published only after all quotes have been matched character by character against the official text, and audited by an independent second reading from a different model family across all eight axes. Both agreed axes and text-grounded interpretive divergences are recorded openly. The ledger is a research record, not an assessment of the court or advice on any matter.
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