Open Decision Ledger · Economic crime
Commencement of execution of breach of trust where a debtor, before delivering share certificates promised as transfer security, made a new transfer security agreement over the same shares with a third party and received loan money
Translated from the Korean original. Read the Korean
Supreme Court, Feb. 25, 2010, 2009Do13187 (judgment)
No holding summary · checked against points at issue. The official text publishes no summary of the holding for this decision. The quotation and factors in this record are copied verbatim from the points at issue; the evidence for each axis is taken from the points at issue, the order and the reasons.
Case name: 특정경제범죄가중처벌등에관한법률위반(배임)(인정된죄명:배임미수)·무고·근로기준법위반
Official text on the National Law Information Center
Question
If a debtor agrees to provide shares as transfer security by delivering the share certificates and, before actual delivery, enters into another transfer security agreement over those shares with a third party and receives loan money, does this amount to commencement of execution of breach of trust?
Holding
The debtor who received the loan monies has, absent special circumstances, a duty to cooperate in the creditor's acquisition of the transfer security interest by actually delivering the shares. The Supreme Court held that, where before actual delivery the debtor entered into a transfer security agreement with a third party over the same shares and received loan monies, this constitutes an act closely connected with the breach of that duty of cooperation and therefore amounts to the commencement of execution of the offense of breach of trust.
Points at issue, verbatim
아직 채권자에게 주식의 현실 교부가 이루어지지 아니한 상태에서 다시 제3자와 그 주식의 일부 또는 전부에 대하여 양도담보를 설정하기로 약정하고 차용금의 일부 또는 전부를 수령한 경우, 배임죄의 실행의 착수에 해당하는지 여부(원칙적 적극)
Unofficial English translation
in a state where actual delivery of the shares to the creditor has not yet been made, again agrees with a third party to set up a transfer by way of security over some or all of those shares and receives part or all of the loaned amount, whether this constitutes the commencement of the execution of the offense of breach of trust (in principle, affirmative)
Disposition
Dismissed Stated in the decision
상고를 기각한다.
Unofficial English translation
The appeal is dismissed.
Form of the test
Elements stated Stated in the decision
채권자에 대한 양도담보권 취득을 위한 주식교부절차 협력의무 위배와 밀접한 행위로서 배임죄의 실행의 착수에 해당한다고 할 것이다
Unofficial English translation
as an act closely connected with the breach of the duty to cooperate in the procedure for the delivery of shares for the purpose of acquiring a transfer by way of security interest against the creditor, it may be regarded as the commencement of the execution of the offense of breach of trust
Factors
- 주권교부의 방법으로 양도담보를 설정하기로 약정하고
- 아직 채권자에게 주식의 현실 교부가 이루어지지 아니한 상태에서
- 다시 제3자와 그 주식의 일부 또는 전부에 대하여 양도담보를 설정하기로 약정하고
- 차용금의 일부 또는 전부를 수령한 경우
Unofficial English translation
• agrees to set up a transfer by way of security by means of delivery of share certificates, and
• in a state where actual delivery of the shares to the creditor has not yet been made,
• again agrees with a third party to set up a transfer by way of security over some or all of those shares, and
• receives part or all of the loaned amount
Relation to precedent
Follows earlier decisions Read from the decision
대법원 1971. 3. 23. 선고 71도246 판결
Unofficial English translation
Supreme Court Decision 71Do246 decided March 23, 1971
Decisions referred to
대법원 1971. 3. 23. 선고 71도246 판결, 대법원 1981. 7. 28. 선고 81도966 판결(공1981, 14222)
Burden of proof
Not addressed Not in the decision
Open question and revisit condition
What would constitute special circumstances negating the debtor's duty to cooperate in the delivery of the shares, and how are the point of consummation of the offense of breach of trust and the amount of profit determined where the shares are actually delivered to a third party?
We will re-examine this reading if the Supreme Court's case law changes as to whether the debtor is a person who handles the affairs of another in favor of the creditor with respect to the collateral property.
Cross-family AI independent reading & axis check
8 of 8 axes matched GPT-6 Astra (OpenAI, codex CLI) · 2026-10-16
In a comparison with an independent reading produced by another line of AI (GPT-6 Astra), which read only the original text without seeing the primary reading, all eight axes matched.
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 that the share-secured loan agreement between the defendant and the victim included an agreement to provide shares owned by the defendant and held under protective custody as transfer security by means of delivery of share certificates, and held that where the defendant, having received the entirety of the loan monies, entered into another transfer security agreement with Non-indicted 2 over 2 million of those shares and received loan monies, this constituted the commencement of execution of the offense of breach of trust, giving rise to the offense of attempted breach of trust. The court below assessed the amount of profit as the amount of the secured debt owed to Non-indicted 2, KRW 2 billion, within the value of the 2 million shares at the time of the commencement of execution, KRW 2.65 billion.
Supreme Court standard: The Supreme Court stated the legal principle that a debtor who has received loan monies has a duty to cooperate in the acquisition of the transfer security interest through actual delivery of the shares, and, accepting as correct the court below's determinations that the defendant was a person who handles the affairs of another, that there had been a commencement of execution, and that the amount of profit was properly calculated, dismissed the final appeal.
Distinguishing conditions
- Where the security agreement does not concern transfer security by means of actual delivery of share certificates, or where the debtor has received no loan monies whatsoever
- Where special circumstances exist that negate the debtor's duty to cooperate
- Where the agreement with the third party concerns shares unrelated to the collateral shares, or where no loan monies were received from the third party
Record verification notes
Before asserting the same conclusion, check whether the initial agreement in fact contained an agreement to provide transfer security by means of actual delivery of share certificates, whether the debtor received the loan monies, and whether the premise of this judgment, treating the debtor as a person who handles the affairs of another, remains consistent with the case law in force.
From the official text
Points at issue
채무자가 채권자로부터 돈을 차용하면서 담보로 채무자 소유의 주식에 대하여 주권교부의 방법으로 양도담보를 설정하기로 약정하고 아직 채권자에게 주식의 현실 교부가 이루어지지 아니한 상태에서 다시 제3자와 그 주식의 일부 또는 전부에 대하여 양도담보를 설정하기로 약정하고 차용금의 일부 또는 전부를 수령한 경우, 배임죄의 실행의 착수에 해당하는지 여부(원칙적 적극)
Unofficial English translation
Where a debtor, while borrowing money from a creditor, agrees to set up a transfer by way of security over shares owned by the debtor as collateral by means of delivery of share certificates, and, in a state where actual delivery of the shares to the creditor has not yet been made, again agrees with a third party to set up a transfer by way of security over some or all of those shares and receives part or all of the loaned amount, whether this constitutes the commencement of the execution of the offense of breach of trust (in principle, affirmative)
Summary of the holding
The official text publishes no summary of the holding for this decision. The quotation and factors in this record are copied verbatim from the points at issue; the evidence for each axis is taken from the points at issue, the order and the reasons.
Order
상고를 기각한다.
Unofficial English translation
The appeal is dismissed.
Provisions referred to
형법 제355조 제2항, 제359조
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.
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