2. B

The summary of this decision shall be published.

From June 2006, Defendant A operated eight substantially the Korea-style restaurant in the name of Dong C, etc. (hereinafter referred to as “Korea-style restaurant in this case”). Defendant B worked for Defendant A’s children as unregistered directors of the Korea-style restaurant and took overall charge of funding.

On September 22, 2015, the Defendants: (a) received a loan of KRW 2 billion from the victim Co., Ltd. (hereinafter referred to as “Co., Ltd.”) in the name of the instant restaurant; (b) KRW 2 billion from the victim G G G Co., Ltd., (hereinafter referred to as “Co., Ltd.”); (c) KRW 1 billion from the victim L Co., Ltd. L Co., Ltd., (hereinafter referred to as “Co.”); and (d) concluded a monetary trust contract with the content that the credit card sales claims of the instant restaurant are entrusted to J for the repayment of the loan with the trust property; and (d) concluded a monetary claim with the trust property in accordance with the said trust contract; and (e) shall not provide or transfer the credit card sales claims, which are trust property, to a third party without the prior written consent of J, the victims and the trustee; and (e)

Nevertheless, around July 22, 2017, the Defendants failed to pay rent due to the decline in the sales of the instant restaurant and caused the situation where the lessor would be ordered to order the store to the lessor, the Defendants entered into an entrusted operation agreement with the K representative L and the instant restaurant without the consent of the victims and J, and changed the name of the credit card merchant agreement into the said K to the said K, and the credit card sales bond belongs to the K.

As a result, the Defendants conspired in violation of their duties to acquire the interest in the amount of loans to K by transferring credit card sales bonds, and caused damages equivalent to KRW 1,925,180,042 to the victims.

2. Summary of the defendants' and defense counsel's assertion

A. Since it is merely a civil obligation for the maintenance, preservation, etc. of credit card sales claims under a contract for the trust of monetary claims stated in the facts charged of the instant case, the Defendants do not constitute a person who deals with another’s business to protect or manage the victims

B. The Defendants entered into an entrusted operation agreement with K in the instant case with K in the bankruptcy crisis, which is inevitable choice for the normalization of management of the instant restaurant, and can be repaid with other collateral, and it does not constitute an act of breach of trust and did not constitute an act of breach of trust, as the Defendants entered into a contract with K in the instant case with K in the bankruptcy crisis.

3. Facts of recognition;

According to the evidence duly adopted and examined by this Court, the following facts are recognized:

A. Defendant A is the actual manager of the instant restaurant, and Defendant B, as Defendant A’s children, has been actually involved in the operation of the instant restaurant and the instant restaurant.

B. On September 22, 2015, the LAC Co., Ltd., among the instant restaurants, borrowed a total of KRW 6 billion from the lender comprised of victim F (loan KRW 2 billion), victim G (Loan KRW 2 billion), victim H (Loan 1 billion), and victim (victim). The repayment of the loan is made from the date of the execution of the loan to the date of the final repayment, and Article 6(1) of the Loan Agreement, which stipulates that the amount of the loan equally divided is to be paid on 36 occasions in installments from the date of the execution of the loan to the date of the final repayment (hereinafter referred to as “the loan agreement in this case”). Among the instant single restaurant, the seven companies, other than the LAC, were jointly and severally guaranteed the debt to the victims of M on the same day.

In addition, the instant restaurant on the same day between the victims and the J (hereinafter referred to as the "J") shall entrust the present and future credit card sales claims to the J, which is the trustee, and the KJ shall transfer the above claims and set up requisite for setting up against them. When the sales proceeds are deposited in the trust collection account opened by eight restaurants from credit card companies, the KJ shall pay the balance of the trust fees, excluding trust fees, etc. among them, the principal and interest of the loan to the victims by dividing it by 36 months (the amount of KRW 62,212,00 per month in the case of the GBB, the amount of KRW 62,212,00 per month, the amount of the interest of the trust contract, the amount of KRW 31,106,00 per month, and the amount of KRW 31,00 from October 23, 2015 to September 23, 2018 to the victims of the trust contract, which shall be paid first to the victims of the trust contract and the amount of the other monetary claims.

C. The instant restaurant concluded the instant monetary trust contract and met all requirements for setting up against the transfer of credit card sales claims, which are claims subject to trust, around that time. Accordingly, from October 12, 2015 to October 12, 2015, the instant trust collection account began to have deposited the sales proceeds of the instant restaurant. The J settled and distributes the instant money to the victims each month from October 23, 2015.

D. According to a special agreement on a monetary claim trust agreement, the instant restaurant bears the duty to maintain the credit card sales claim, which is a trust claim, without arbitrarily changing the subject of the ownership of the credit card sales claim during the trust period. The main contents of the relevant contract are as follows.

2. That the claims subject to trust as of the date of conclusion of the special agreement on the trust contract under Article 2 (1) of the special agreement on the trust contract for monetary claims shall be limited to those satisfying the requirements set forth in the following items: < Amended by Presidential Decree No. 20340, Feb. 2, 2008> The trust of claims subject to trust shall be duly and effectively formed or existing (2) the claims subject to trust shall not be subject to trust; 6. The truster shall not, without the prior consent of all the trustee and beneficiaries, change the contents of the claims subject to trust or claim for return of the claims subject to trust.The truster's confirmation and the truster of the trust under Article

1.The truster shall confirm and ensure that the following is confirmed to beneficiaries of Class II: (a) claims subject to trust that are transferred by the truster to a trustee by the truster under a trust agreement shall meet all the qualifications specified in Article 2 of this Special Agreement as of the date on which the claims subject to trust are fixed and the date on which this Special Agreement is concluded; and (b) shall ensure that the truster shall continue to meet the qualifications specified in Article 2 of this Special Agreement during the duration of the claims subject to trust. Article 16 shall agree that the truster shall comply with the terms and conditions of the contract; (c) the truster shall faithfully perform his/her obligations specified in an individual contract (including all the obligations, such as submission of electronic media, computer files, etc. to the truster and the company subject to trust; and (d) the truster shall not perform any act that seriously affects the occurrence of claims subject to trust without consent of the truster and the first-class beneficiary and the second-class beneficiary; and (d) the truster shall not provide the truster and the third-class trust company subject to trust with a prior consent of the truster or third-class trust without consent of the trust agreement.

E. When the Defendants failed to pay wages and rents due to the decline in the sales of the instant cafeteria, and accordingly, a suit was filed against the Development Bank of Korea, etc., on July 22, 2017, the Defendants: (a) entrusted the operation of the instant cafeteria to the Development Bank of Korea by July 21, 2019; (b) entrusted the operation of each store by July 21, 2019; (c) succeeded to the previous employment contract with the employees; and (d) concluded a contract with each entrusted operation company with the content that the Defendants shall pay the amount equivalent to 10% of the sales amount generated during the period of entrusted operation (hereinafter collectively referred to as the “instant entrusted operation contract”).

F. After the agreement on the instant consignment management, K changed the name of the operator of the instant restaurant to the K K branch of the K. The credit card merchant and the drug name of the instant restaurant was changed. Accordingly, the name of the former operator of the instant restaurant was suspended from making a deposit in the J’s trust collection account since August 4, 2017 because credit card sales claims did not accrue, and the payment for victims was also suspended.

4. Determination

A. The crime of breach of trust is established when a person who administers another’s business acquires pecuniary benefits by an unlawful act of breach of trust and causes damage to another person who is the principal agent of the business, so the principal agent of the crime must be in charge of managing another’s business. In this context, to be recognized as “management of another’s business,” it should be limited to a case where the whole or part of another’s business concerning the management of another’s property is performed on behalf of another and cooperation is made in preserving another’s property. The principal substance of the relationship between the two parties should be to protect or manage another’s property on the basis of trust, which goes beyond a mere obligation under a contractual relationship. If the business is not a business of another person, but a person who administers another’s business is not a person who administers another’s business (see Supreme Court Decision 2011Do3482, Feb. 27, 2014).

B. In light of the following circumstances revealed by the health team, the above fact of recognition, and the evidence duly adopted and examined by the court, the evidence submitted by the prosecutor alone is insufficient to regard the duty to maintain the obligation of the instant restaurant and its actual manager without arbitrarily changing the subject of the credit card sales claim, which is the trust-related claim, as the "other person's business" stipulated in the crime of breach of trust, and there is no other evidence to acknowledge it otherwise.

① As the principal of the loan contract of this case provides that the borrower shall repay the loan by dividing the principal and interest of this case by 36 installments each month, it is necessary for the victims to take measures to recover the loan in a stable and reliable manner during the installment repayment period. As such, the victims are not required to make installment payments due to the repayment act of the Defendants or the Korea-Japan restaurant, but to make a way to minimize the involvement of the instant restaurant by paying the credit card sales claim, which occurred or is likely to arise as a result of the business activities of the instant restaurant through the monetary claim trust contract of this case, not through the monetary claim of this case, to the extent that the instant restaurant belongs to J, the trustee, by transferring the principal and interest of the loan of this case.

As can be seen, the monetary claim trust contract of this case is a contract that specifically determines the relevant matters in order to smoothly repay the debt through settlement of the third party and distribution affairs using the trust contract in accordance with the method of repayment of the loan stipulated in the loan contract of this case.

(2) Of course, as stipulated in Articles 14 and 16 of the Special Agreement on Monetary Claim Trust Contract, the instant restaurant shall not guarantee that credit card sales claims, which are claims subject to trust, continue to exist in a lawful and effective manner during the period of trust, and shall not have a significant adverse effect on the occurrence of claims subject to trust, and shall not engage in any act that infringes on the rights of victims of claims subject to trust, such as changing the contents of claims subject to trust or terminating the credit card merchant agreement without consent of the victims and the J, and shall not be denied that the performance of such obligations becomes the basic premise for the settlement of sales proceeds and distribution affairs conducted by J when the credit card merchant agreement is modified.

However, the meaning of "a person who administers another's business, which is a constituent element of the crime of breach of trust, should be interpreted in accordance with the nature of the business, and it is necessary to strictly distinguish between "a person who administers another's business" and "a person who administers another's business" from "a person who administers another's business" in this sense, if the performance of the obligation is not concurrently intended for another's interest.

As long as the instant restaurant, the truster, pursuant to the monetary claim trust contract of this case, transferred credit card sales claims to J, the trustee, and fulfilled requisite to set up against him/her, such credit card sales claims shall be entirely and externally transferred to J, and the obligation to protect and manage them shall be borne by J.

[See Article 2 (2) of the Special Agreement on Monetary Claim Trust Contract, which provides that the beneficiary shall wholly belong to the trustee with the right to benefit and dispose of the claim subject to trust.]

In addition, the monetary claim trust contract of this case is similar to the priority beneficiary of the security trust contract of this case, in that the instant restaurant is subject to the credit card sales claims of the instant restaurant, as prescribed by Article 8(3) of the loan contract of this case, where the victims are designated as the priority beneficiary of the security trust contract of this case, which covers 0 to 754m of Gyeonggi-gun, and 13 real estate as the beneficiary of the trust. However, the real estate security trust of this case is different from the monetary claim of this case in terms of the fact that the debtor becomes the truster and the creditor are the beneficiary, and the trustee transfers the ownership of the real estate in the trust to the trustee (trust), and the debtor or the third party fails to repay the debts after managing the trust property for the purpose of the security, the trustee disposes of the trust property and pays the proceeds to the beneficiary who is the creditor, and the real property is identical to the case where the debtor establishes the physical security in the real estate (in case of the real estate security trust, completing the trust registration).

③ The special agreement on the trust contract for monetary claims under Articles 14 and 16 cannot be said to be “acting for another person’s business, such as repayment of loan obligations,” and each of such obligations is merely an incidental requirement to the instant restaurant in order to achieve the ultimate purpose of the repayment of loan obligations, as part of the obligations of the instant oriental restaurants as stipulated by the monetary claim trust contract, and thus, is merely an incidental requirement to the instant restaurant to achieve the ultimate purpose of the repayment of loan obligations. Even if there are some aspects for the interest of the victims, it cannot be said that the instant restaurant or the Defendants have the duty to cooperate in the act of protecting or managing property, which serves as the basis for the punishment of breach of trust, based on a trust relationship between the victims and victims, beyond the general

Therefore, the Defendants were unable to perform their obligations to victims as a result of the Defendants’ failure to incur credit card sales claims under the name of the former business operator upon entering into the instant consignment operation agreement.

Even if there is a simple civil default on the victims, it can not be said that it is merely a breach of trust, and it constitutes a breach of trust.

5. Conclusion

Thus, the facts charged in this case constitute a case where there is no proof of crime, and thus, each of the defendants is acquitted under the latter part of Article 325 of the Criminal Procedure Act, and the summary of the verdict of innocence is announced in accordance with the main sentence of Article 58(2) of the Criminal

Judge Lee Sung-sung

Judges Lee private-young