[사기·배임][공2009하,1587]
Whether the obligation of the fraternity, which is to be borne by the successful bidder without collecting the fraternity payment to the members, constitutes a "other person's business" as referred to in the crime of breach of trust (negative)
In order to constitute a “other person’s business” as referred to in the crime of breach of trust, a successful bidder’s obligation to pay in accordance with an agreement with the members constitutes a “party’s business” as referred to in the crime of breach of trust, the principal content of the relationship should reach the protection or management of another person’s property on the basis of a fiduciary relationship beyond a simple obligation under the fiduciary relationship. If the transferor collects the fraternity from the members, the advance payment should carry the nature of the money in substance entrusted to the transferor for the sake of the principle of prohibition against the successful bidder. Therefore, the advance payment should be based on a fiduciary relationship that protects or manages the said advance payment for the sake of the principle of good faith, beyond a simple creditor relationship between the fraternity and the successful bidder to receive the successful bidder, and thus, the obligation to pay in advance constitutes another person’s business as referred to in the crime of breach of trust. However, if the transferor did not collect the advance payment from the fraternity, it does not constitute a mere obligation under the fiduciary relationship, and this cannot be viewed as a case where it did not go against the agreement to pay in advance.
Article 355(2) of the Criminal Act
[Plaintiff-Appellant-Appellee] Plaintiff 1 and 1 other (Law Firm Gyeong, Attorneys Park Jong-soo et al., Counsel for plaintiff-appellant-appellee-appellant-appellee-appellant-appellee-appellant-appellee-appellant-Appellee-
Defendant 1 and one other
Defendant 1 and Prosecutor
Attorney Jeong-hee
Seoul Central District Court Decision 2009No444 Decided April 2, 2009
Each appeal shall be dismissed.
1. We examine the prosecutor’s grounds of appeal.
In order to constitute a “other person’s business” as referred to in the crime of breach of trust, the principal content of the relationship should reach the protection or management of another person’s property on the basis of a fiduciary relationship, which goes beyond the simply the obligation under the fiduciary relationship. If the former is to collect the entire amount from the former, the former has the nature of the amount entrusted to the former for the sake of the principle of prohibition against the successful bidder. Therefore, the former is based on a fiduciary relationship where the former is to protect or manage the said deposit amount for the sake of the principle of good faith, beyond a simple fiduciary relationship between the former and the latter, and thus, the latter constitutes a business of another person in the crime of breach of trust. However, if the former did not collect the deposit amount from the former, the latter does not constitute a mere obligation under the fiduciary relationship, and this cannot be viewed as a case where the latter does not constitute a case where the former is in violation of the fiduciary relationship, and thus, the latter does not collect the deposit amount from the former.
As stated in its holding, the court below acquitted the Defendants of the violation of trust on November 5, 2007, on the ground that the Defendants did not have the duty to pay the fraternity to the members of the fraternity who did not receive the payment from the members of the fraternity on the nine-time period of time, while organizing and operating the successful bidder as the fraternity, and the guidance was avoided. In light of the above legal principles, the court below did not err by misapprehending the legal principles as to a person who administers another person's business in breach of trust, as alleged in the grounds of appeal.
In addition, the defendants' duty to maintain and operate the successful bid price normally is merely a general duty to perform according to the agreement with the members of the fraternity, and there is no reason to argue in the grounds of appeal premised on the fact that it constitutes another's business. Furthermore, the Supreme Court Decision 95Do1176 Decided September 25, 1995, which is required in the grounds of appeal, is related to a case in which the owner violated the duty to maintain and operate the specific members of the fraternity, and the duty to maintain and operate the contract normally is not deemed to belong to the other person's business under the crime of breach of trust.
2. Defendant 1’s ground of appeal is examined.
In this case where a sentence of imprisonment with labor for less than 10 years has been imposed on Defendant 1, the reason that the amount of punishment is unreasonable cannot be a legitimate ground for appeal.
3. Therefore, the appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.
Justices Kim Nung-hwan (Presiding Justice)