Open Decision Ledger · Economic crime
Breach of Trust by the Eldest-Line Descendant Entrusted with the Sale of Clan Association Land, and Calculation of the Amount of Gain Based on the Average Sale Price of the Land as a Whole
Translated from the Korean original. Read the Korean
Supreme Court, Sept. 13, 2012, 2012Do3840 (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: 특정경제범죄가중처벌 등에 관한 법률 위반(배임)
Official text on the National Law Information Center
Question
Where a person sells clan association land together with his own land and thereby causes the clan association land to be sold at a bargain price, may the arithmetic mean of the total sale price of the land as a whole be regarded as the fair price of the clan association land, so that the amount of gain under the Specific Economic Crimes Act may be calculated on that basis?
Holding
The Supreme Court upheld the finding of the court below that the conduct of the defendant, who had been entrusted in substance by the clan association with the authority to decide whether to sell and at what price, constituted a breach of duty. The Court held, however, that there was no direct evidence supporting the finding of an agreed per-pyeong price for the land as a whole, and that land prices in a development area may vary according to the outcome of negotiations; accordingly, it viewed as erroneous the recognition of the amount of loss and the amount of gain on the basis of the arithmetic mean of the total sale price.
Points at issue, verbatim
재산상 이득액을 기준으로 가중 처벌하는 특정경제범죄 가중처벌 등에 관한 법률 위반(배임)죄의 적용을 전제로 이득액을 산정할 때 유의할 사항
Unofficial English translation
Matters requiring attention when calculating the amount of gains on the premise of applying the offense of violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (breach of trust), which imposes aggravated punishment based on the amount of property gains
Disposition
Reversed and remanded Stated in the decision
원심판결을 파기하고, 사건을 서울고등법원에 환송한다.
Unofficial English translation
The judgment of the court below is reversed, and the case is remanded to the Seoul High Court.
Form of the test
Existing test applied Read from the decision
이러한 원심판결에는 배임죄에 있어서 손해액 및 이득액 산정에 관한 법리를 오해하고
Unofficial English translation
The judgment of the court below, which misconstrued the legal principle concerning the calculation of the amount of loss and the amount of gains in the offense of breach of trust,
Factors
- 타인의 사무를 처리하는 자
- 임무에 위배하는 행위
- 재산상 이득액을 기준으로 가중 처벌하는
- 이득액을 산정할 때 유의할 사항
Unofficial English translation
• a person who handles the affairs of another
• an act in breach of one's duty
• which imposes aggravated punishment based on the amount of property gains
• matters requiring attention when calculating the amount of gains
Relation to precedent
Follows earlier decisions Stated in the decision
대법원 2007. 4. 19. 선고 2005도7288 전원합의체 판결
Unofficial English translation
en banc judgment, Supreme Court Decision 2005Do7288 decided April 19, 2007
Decisions referred to
[1] 대법원 1994. 9. 9. 선고 94도902 판결(공1994하, 2678) / [2] 대법원 2007. 4. 19. 선고 2005도7288 전원합의체 판결(공2007상, 923), 대법원 2012. 8. 30. 선고 2012도5220 판결
Burden of proof
Not addressed Not in the decision
Open question and revisit condition
Where a fair sale price cannot be ascertained and the amount of gain therefore remains undetermined, what other method is there of calculating the amount of loss, besides charging the offense under the Criminal Act rather than under the Specific Economic Crimes Act?
If the standard for the amount of gain under Article 3, paragraph (1) of the Specific Economic Crimes Act, or the en banc precedents on the calculation of the amount of gain in an offense of breach of trust, changes, we will re-examine this reading.
Cross-family AI independent reading & axis check
6 of 8 axes matched GPT-6 Astra (OpenAI, codex CLI) · 2026-10-16
When compared with an independent reading by another line of AI (GPT-6 Astra), which read only the original text without seeing the primary reading, 6 of the 8 axes matched, and the readings diverged on Axis 4 (Form of the test) and Axis 8 (Open question and revisit condition).
Axis 4 (Form of the test): Primary “Existing test applied” vs Independent “Elements stated”
Because the Holdings address both the meaning of the constituent elements of the offense of breach of trust and the matters to be noted in calculating the amount of gain, the primary reading may focus on the application of the specific method of calculation, while the independent reading may focus on the statement of general requirements.
배임죄 구성요건 중 ‘타인의 사무를 처리하는 자’, ‘임무에 위배하는 행위’의 의미Axis 8 (Open question and revisit condition): Primary “Where a fair sale price cannot be ascertained and the amount of gain therefore remains undetermined, what other method is there of calculating the amount of loss, besides charging the offense under the Criminal Act rather than under the Specific Economic Crimes Act?” vs Independent “If the individual transaction conditions of the clan association land and the course of negotiations are taken into account, what, specifically, is the amount of gain arising from the defendant's act of breach of trust?”
The primary reading asks about an alternative method of calculation where the amount of gain cannot be determined, while the independent reading asks about the specific amount of gain reflecting the individual transaction conditions.
재산상 이득액을 기준으로 가중 처벌하는 특정경제범죄 가중처벌 등에 관한 법률 위반(배임)죄의 적용을 전제로 이득액을 산정할 때 유의할 사항Raw 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 defendant, although entrusted in substance by the clan association with the authority to decide whether to sell the clan association land and at what price, deceived the members of the clan association into selling the clan association land for 4.6 billion won on the basis of 1.01 million won per pyeong, and his own land for 12.82 billion won on the basis of 2.58 million won per pyeong, and treated this as a breach of duty. Going further, the court below found that the buyer had agreed to a per-pyeong price of not less than 1.8 million won for the land as a whole, and, on the basis of 1,831,370 won per pyeong, being the arithmetic mean of the total sale price, recognized an amount of gain of 3.73 billion won, and charged the offense under Article 3, paragraph (1), subparagraph 2 of the Specific Economic Crimes Act.
Supreme Court standard: The Supreme Court held that the finding of the court below that the defendant was a person handling another's affairs and that there was a breach of duty was proper. However, there was no direct evidence that the parties had agreed on 1.8 million won per pyeong for the land as a whole; the range of 1.8 million won to 2 million won per pyeong was no more than the maximum price the buyer was willing to pay; and real estate prices in a development area may vary according to the parties' attitudes and bargaining ability. The Court therefore held that treating the arithmetic mean as the fair price was a misunderstanding of the legal principle governing the calculation of the amount of gain and an exceedance of the limits of the principle of free evaluation of evidence, and reversed and remanded.
Distinguishing conditions
- Where there is direct evidence that the actor and the buyer agreed on the total sale price of the land as a whole, or on the price per pyeong
- Where only the simple offense of breach of trust under Article 355, paragraph (2) of the Criminal Act, in which the amount of gain is not a constituent element, is at issue
- Where the objective fair price of the property in question can be ascertained by appraisal or by established market transaction prices
Record verification notes
Before asserting the same conclusion, one needs to check whether there is evidence supporting a relationship of consideration, arising from the circumstances in which the sale price was determined, that the actor raised the price of his own land instead of lowering the price of the clan association land, and whether the neighboring transaction comparables concern land with different negotiation conditions.
From the official text
Points at issue
[1] 배임죄 구성요건 중 ‘타인의 사무를 처리하는 자’, ‘임무에 위배하는 행위’의 의미 [2] 재산상 이득액을 기준으로 가중 처벌하는 특정경제범죄 가중처벌 등에 관한 법률 위반(배임)죄의 적용을 전제로 이득액을 산정할 때 유의할 사항
Unofficial English translation
[1] Meaning of 'a person who handles the affairs of another' and 'an act in breach of one's duty' among the constituent elements of the offense of breach of trust [2] Matters requiring attention when calculating the amount of gains on the premise of applying the offense of violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (breach of trust), which imposes aggravated punishment based on the amount of property gains
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
원심판결을 파기하고, 사건을 서울고등법원에 환송한다.
Unofficial English translation
The judgment of the court below is reversed, and the case is remanded to the Seoul High Court.
Provisions referred to
[1] 형법 제355조 제2항 [2] 형법 제355조 제2항, 특정경제범죄 가중처벌 등에 관한 법률 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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