업무상배임
The defendant's appeal is dismissed.
1. The summary of the grounds for appeal is that the Defendant was in a partnership business relationship with F, not an employee of the E Co., Ltd. (hereinafter “E”), and separate from each construction contract (hereinafter “each existing construction contract of this case”) entered into in the name of E, at the time of concluding a new construction contract under the name of the Defendant (hereinafter “each new construction contract of this case”) (hereinafter “each new construction contract of this case”), the Defendant was not in a position of a person dealing with E’s affairs since it terminated the partnership business relationship.
In addition, the payment of the down payment under the existing construction contract of this case is received, and this is more than the general net profit that E may gain from the above construction contract, so the defendant did not have suffered economic loss due to the conclusion of each new construction contract of this case.
Therefore, the crime of occupational breach of trust of this case is not established.
2. Determination
A. The crime of breach of trust is established when a person who administers another's business obtains pecuniary advantage or has a third party acquire it through an act in violation of his/her duty and thereby inflict loss on the principal. As the subject of the crime of breach of trust refers to a person who is acknowledged to have a fiduciary relationship to handle the business in light of the principle of trust and good faith, and it does not necessarily require that he/she has a right to the business in an external relationship with a third party. In addition, it does not require that his/her business be a comprehensive consignment, and the ground for the crime of breach of trust, namely, the occurrence of fiduciary relationship, may arise through the provisions of statutes, legal act, custom, or business management. Thus, even if a person who administers the business after the extinction of legal authority, or performs the business before he/she is dismissed from the office, he/she administers the business in the crime of breach of trust