The gist of the facts established by the court below is that the defendant determined the amount of the construction work of the building as to non-indicted D's non-indicted D's lawful acquisition of the amount of the construction work with the victim 9,350,00 won, and agreed to grant the victim the right to benefit from the construction work with the lease deposit or rent to the merchants of the building which has not been completed as security of the claim. As such, the defendant is obligated not to infringe on the right to benefit or interfere with the exercise of the right to benefit until repayment of the construction work deposit or rent pursuant to the above agreement, even before the victim was appropriated for repayment of the full amount of the claim, he transferred the ownership of the building to the non-indicted Kim Jong-jin before it was appropriated for payment of the full amount of the claim, and prepared a letter of waiver and transfer of the building to the non-indicted Kim Jong-jin, thereby allowing the other party to file a lawsuit seeking ownership transfer registration of the building and completed the registration of ownership transfer in the future, and thus, the defendant's act of trust is no more than 935,0,00,000 won.

However, the crime of breach of trust under Article 355 (2) of the Criminal Act is established when a person administering another's business commits an act in violation of one's duty and thereby acquiring or causing damage to the principal. Thus, the subject of the crime is required to manage another's business. Here, where the whole or part of another's business concerning the management of another's property is performed by proxy, such as delegation, employment, contract, deposit, etc., and where a certain authority is exercised for the principal to complete one's own business such as sale and purchase, creation of a security right, etc., and where the preservation of another's property is related to the active and passive cooperation, it cannot be deemed that the other's business is the execution of another's business, regardless of whether it is recognized as the principal's business, if the other's business is simply bearing an obligation to pay damages to the victim, and therefore, it is difficult to say that the agreement between the defendant and the victim grants the right to use and benefit from the building in this case is a mere obligation of the defendant to pay damages to the victim's construction expenses.

Therefore, the judgment of the court below is erroneous in the misapprehension of legal principles as to another person's business, which constitutes the elements of breach of trust, which affected the conclusion of the judgment.

Therefore, other grounds of appeal are without merit. The judgment of the court below is reversed and the case is remanded to the Panel Division of the Seoul Criminal Court. It is so decided as per Disposition by the assent of all participating judges.

Justices Kang Jong-young (Presiding Justice)