[2] The subjective elements of the crime of occupational breach of trust, and whether the crime of occupational breach of trust is established in a case where an act was committed with the intent to secure one’s own interest

[3] The case holding that acquiring new shares issued by Eul affiliated company at par value, which is in a state of considerable financial soundness with the funds of Gap affiliated company due to management judgment, is an act of occupational breach of trust and the intention of occupational breach of trust is sufficiently recognized

[4] Whether an auxiliary agency may be the subject of occupational breach of trust (affirmative)

[5] The elements for the establishment of a conspiracy relationship with the co-principal

[6] The meaning of "when property damage is inflicted on the property" in the crime of breach of trust and the scope of the amount of damages in case where the company whose actual value of the shares is zero acquires new shares issued at par value

[7] Where the representative director of the company provides a payment guarantee or a joint and several guarantee under the name of the company, not the loss of ability to repay debts, but merely exceeds the debt, whether it constitutes a breach of trust against the company (negative)

[8] The timing of the occurrence of crimes committed by preparing and publicly announcing false financial statements under the former Act on External Audit of Stock Companies

[2] In order to establish a crime of occupational breach of trust, the perception of occupational breach of trust as a subjective element and thereby requires the awareness that the person himself or a third party acquires the benefit and thereby causes damage to the principal, namely, the intent of breach of trust. Such recognition is sufficient due to dolusence. A third party who obtains the benefit is an affiliated company with the same third party, and even if the result of the act was committed for the purpose of rehabilitation of the entire affiliated company group, the intent for the benefit of the principal is only an incidental, but cannot be denied if it is proved that the intent for the benefit or damage was the principal.

[3] The case holding that it is clear that the Chairperson, etc. of a large enterprise acquires new shares issued by a Eul-affiliated company at par value with the funds of a company A, which are considerably poor financial structure due to management judgment, constitutes occupational breach of trust, and the intent of breach of trust is sufficiently recognized.

[4] In the case of occupational breach of trust, a person who administers another's business as an inherent authority does not limit the person to handle the business and includes a person who directly or indirectly takes charge of the business as an auxiliary agency of the person.

[5] In relation to accomplices who are jointly engaged in a crime by more than two persons, the conspiracy does not require any legal punishment, but is only a combination of two or more persons to jointly process a crime and realize the crime. Even if there was no process of conspiracy, if a combination of doctors is made in order or implicitly through several persons, the conspiracy relationship is established, and even if there was no direct participation in the act of conspiracy, the other persons are held liable as co-principal for the act of the conspiracy.

[6] In case of the crime of breach of trust, not only a case of causing a real loss but also a case of causing a risk of actual damage to property. In case of acquiring new shares issued by a company whose actual value of the shares is zero at par value, the amount of damages therefrom shall be deemed to be equivalent to the total amount of the acquisition price of the new shares.

[7] If the representative director of a company knew that it would cause damage to the company in the event of payment guarantee or joint and several liability guarantee for another person's debt under the name of the company, such as where the other person's loss or debt is accumulated as a chronic deficit and its financial structure is considerably poor and thus it has already lost its ability to repay the debt, such payment guarantee or joint and several liability guarantee shall be deemed as an act of breach of trust against the company. However, solely on the ground that the other person's debt exceeds his/her debt, such payment guarantee or joint and several liability guarantee shall not be readily concluded as an act

[8] According to Article 14(1) of the former Act on External Audit of Stock Companies (amended by Act No. 5497 of Jan. 8, 198), and Article 7(4) of the Enforcement Decree of the same Act (amended by Presidential Decree No. 1579 of Apr. 24, 1998), the method of disclosure of financial statements under the former Act on External Audit of Stock Companies shall be based on Article 448(1) of the Commercial Act. According to Article 448(1) of the Commercial Act, a director shall disclose financial statements by keeping them at the principal office for five years from one week before the day of the ordinary general meeting and at a branch office for three years from a certified copy of financial statements. Thus, a crime that prepares and discloses false financial statements under Article 20(2)2 of the former Act on External Audit of Stock Companies shall be established when the financial statements are kept at the principal office for one week prior to the day of the ordinary meeting.

A. As to the Defendants’ occupational breach of trust and intent of breach of trust

In order to establish the crime of occupational breach of trust, a person who administers another's business obtains pecuniary advantage or has a third party obtain it through an act in violation of one's duty and thereby causes loss to the principal. In this case, the term "act in violation of one's duty" includes any act in violation of a fiduciary relationship with the principal by failing to perform an act that is naturally expected under the provisions of law, the terms of a contract, or the good faith principle, or by performing an act that is expected not to perform as a matter of course, in light of specific circumstances such as the content and nature of the business (see Supreme Court Decision 2002Do1696, Jul. 22, 2002).

In addition, for the crime of occupational breach of trust to be established, the perception of occupational breach of trust as a subjective element and the recognition that the person himself or a third party acquires the benefit and thereby causes damage to the principal, that is, there must be an intention in breach of trust. Such recognition is sufficient for the third party who has acquired the benefit, and even if the result of the act was committed for the purpose of rehabilitation of the entire affiliated group, it is an affiliated company with the same third party, and even if there are some aspects of the result of the act, the intention for the benefit of the principal is only an incidental, and it is proved that the intention for the benefit or damage is the principal (see Supreme Court Decisions 2001Do160, Jul. 13, 2001; 202Do5679, Feb. 11, 2003, etc.).

Examining these legal principles and the evidence of the first instance judgment as cited by the court below, Defendant 1 is the chairman of the (mutual omission) group with which Nonindicted Co. 2 and Nonindicted Co. 3, and Nonindicted Co. 1, etc. belong; Defendant 3 is the chief director of the (mutual omission) group with directors and vice-chairpersons of Nonindicted Co. 2; Defendant 2 is the representative director of the Nonindicted Co. 2. The Defendants already knew of the financial status of Nonindicted Co. 1, which is considerably poor, such as the fact that the actual value of the issued shares is evaluated as zero, and there is no ability to pay insurance money, and thus, the order to increase the capital of the Minister of Finance and Economy for Nonindicted Co. 1 should be performed on the ground of the fact that it is just in fact, and that the acquisition of new shares by Nonindicted Co. 2 at par value with the funds of Nonindicted Co. 1, which were issued by Nonindicted Co. 2, who did not have any obligation to take over the new shares of Nonindicted Co. 1, as the result of the misunderstanding of trust order.

B. As to the assertion regarding Defendant 3’s person handling another’s business

In the case of occupational breach of trust, a person who administers another's business as an inherent authority does not do so and includes a person who, directly or indirectly, takes charge of the management of another's business (see Supreme Court Decision 9Do1911 delivered on July 23, 199, etc.).

Examining the reasoning of the judgment below in light of the records, the judgment of the court below is justified in accordance with the above legal principles, and there is no error in the misapprehension of legal principles as to the person who administers the affairs of the non-indicted 2 corporation, under the premise that the defendant 3 is entitled to participate in the board of directors of the non-indicted 2 corporation as a director of the non-indicted 2 corporation as well as vice-chairperson and the chief of the planning and coordination office of the (mutual omission) group,

C. As to the assertion regarding the recognition of joint principal offender by Defendant 1 and Defendant 3

In relation to co-offenders who are jointly engaged in a crime, the conspiracy does not require any legal punishment, but is only a combination of two or more persons to jointly process a crime and realize the crime. Even if there was no process of the whole conspiracy, if the combination of the intent is made in order or implicitly through the agreement among several persons, the conspiracy relationship is established, and even if there was no direct participation in the act of the execution, the person who is not directly involved in the act of the execution shall be punished as co-principal (see Supreme Court Decision 2002Do6103, Jan. 24, 2003, etc.).

Examining the reasoning of the judgment below in light of the records, the court below is just and acceptable, and there is no error of law such as misunderstanding of facts against the rules of evidence in light of the above legal principles in finding that Defendant 3 and Defendant 2 conspired to take over the shares of Nonindicted Co. 1 in the first and second phases and that Defendant 1 participated in such an act.

D. As to the assertion regarding Defendant 1’s computation of damages

In the case of breach of trust, property damage not only causes a real loss but also causes a risk of actual property damage (see Supreme Court Decision 9Do338 delivered on December 8, 2000, etc.). In the case where new shares issued by a company whose real value is zero (permanent) are acquired at par value, the amount of damage incurred therefrom shall be deemed to be equivalent to the total amount of the acquisition price of new shares.

Upon examining the reasoning of the judgment below in light of the records, the court below's determination that the amount of damages equivalent to 50 billion won for the acquisition price of new shares of non-indicted 1 corporation is in accordance with the above legal principles, and there is no error in the misapprehension of legal principles as to the calculation of damages in the crime of breach of trust, as otherwise alleged in the grounds of appeal, and there is no error in the misapprehension of legal principles as to the calculation of damages in the crime of breach of trust, and the precedents pertaining to the method of appraisal of shares in a case where there is a normal transaction example that properly reflects the objective exchange

E. As to the assertion that there exists a ground to deny illegality against Defendant 1

Examining the reasoning of the judgment below in light of the records, we affirm the court below's rejection of the defendants' assertion that the defendants' act does not violate social norms on the ground that the non-indicted 2 corporation did not necessarily have to take place in order to increase the capital of the non-indicted 1 corporation by acquiring the shares of the non-indicted 1 corporation, and there is no error of law such as misunderstanding of legal principles

F. As to the assertion that there exists a ground for exclusion from liability against Defendant 1

Examining the evidence adopted by the court of first instance as cited by the court below in light of the records, the court below is justified in finding the Defendants guilty on the ground that the non-indicted 2 corporation was not obligated to take over the shares of the non-indicted 1 corporation in order to implement the capital increase order, on the premise that the non-indicted 1 corporation was not obligated to take over the shares of the non-indicted 1 corporation, or that the non-indicted 2 corporation was not likely to take over the shares of the non-indicted 1 corporation, or that the acquisition of shares of the non-indicted 1 corporation was not likely to be subject to criticism. There is no

2. Determination as to Defendant 1 and Defendant 2’s violation of the Special Economic Act (Misappropriation) with respect to Nonindicted 4 Stock Company

A. The judgment of the court below

The summary of this part of the facts charged is as follows: Defendant 1 and Defendant 2 conspired to guarantee the payment of the obligations of Nonindicted Co. 4; Nonindicted Co. 4 violated the duty of business to prevent damage to Nonindicted Co. 2, 30,306,985 won in 196; 579,515,629,902 won in total; 168,685,322,917 won in capital; and 16,000,000 won in capital; and there is an uncertain situation as to whether rehabilitation is still in legal management from October 17, 1983; the court below convicted Nonindicted Co. 4 Co. 2, Ltd. 12,719,46,9775,7767,76757, and 1967,7675,767, and 2767,767,757, and 1967,757, of joint and several surety’s property interest.

B. Judgment of the Supreme Court

However, we cannot accept the above decision of the court below for the following reasons.

(1) If the representative director of a company knew that it would cause damage to the company in the event of payment guarantee or joint and several liability guarantee for another person's debt under the name of the company, such as where loss or debt amount is accumulated as a chronic deficit and the other person has already lost its ability to repay the debt, such payment guarantee or joint and several liability guarantee shall be deemed to constitute a breach of trust against the company. However, solely on the ground that the other person's debt exceeds his/her debt, such payment guarantee or joint and several liability guarantee shall not be readily concluded to constitute a breach of trust against the company.

(2) According to the facts duly admitted by the court of first instance as cited by the court below, it is recognized that the non-indicted 4 corporation is a corporation under legal management from October 17, 1983, whose total assets in 1996 exceed KRW 410,830,306,985, its liabilities exceed KRW 579,515,629,902, its total capital amounting to KRW 168,685,322,917, its capital amounting to KRW 16,00,000,000.

However, according to the records, Non-Indicted 4 Co. 1 was found to have carried on business profits after 192 (the net income per company was KRW 5,86,15,803 on the end of 192, KRW 7,854,389,803 on the end of 193, KRW 5,082,52, and KRW 521 on the end of 194, and KRW 1,250,685,110 on the end of 195, and KRW 2,279,421, and KRW 43 on the end of 1996 on the part of Non-Indicted 2 on the part of Non-Indicted 4 at the time of the above company reorganization procedure, and there is no possibility that the Defendants would have carried on the establishment of a new security deposit against Non-Indicted 2 Co. 3, Ltd. on the ground that it had been aware that there was no possibility that it would have been an additional security deposit against Non-Indicted 1400 billion.

Nevertheless, the court below, on the sole basis of the fact that the non-indicted 4 corporation is a company under legal management and its total capital amounted to KRW 168,685,322,917, it is concluded that the non-indicted 4 corporation's act of joint and several liability for the public interest obligations of the non-indicted 4 corporation was established as a crime of occupational breach of trust by concluding that the non-indicted 4 corporation had no rehabilitation ability at that time, and that the act of joint and several liability of the non-indicted 4 corporation constitutes an unlawful act that affected the conclusion of the judgment due to a mistake of facts against the rules of evidence

3. Judgment on Defendant 1’s violation of the Act on External Audit of Stock Companies

A. The judgment of the court below

The summary of this part of the facts charged is that Defendant 1 prepared and published false financial statements in violation of the accounting standards set by the Securities and Exchange Commission with the approval of the Minister of Finance and Economy. Accordingly, the court below affirmed the first instance court's determination that the public prosecution of this case, which was instituted on March 16, 2001, was instituted within the statute of limitations, and found Defendant 1 guilty based on the adopted evidence of the judgment, inasmuch as the defendant was audited by an external auditor on March 20, 1998 after receiving a false financial statements, such as balance sheets and profit and loss statements, and a crime was completed by disclosing the tendency newspaper and Seoul newspaper on March 20, 198.

B. Judgment of the Supreme Court

However, we cannot accept the above determination by the court below for the following reasons.

(1) According to Article 14(1) of the former Act on External Audit of Stock Companies (amended by Act No. 5497 of Jan. 8, 1998 and enforced from April 1, 1998; hereinafter referred to as the "Outward Act"), Article 7(4) of the Enforcement Decree of the Act, the method of disclosure of financial statements under the External Audit Act shall be based on Article 448(1) of the Commercial Act. Article 448(1) of the Commercial Act provides that a director shall disclose financial statements by keeping them at the principal office for five years from one week prior to the date of the ordinary general meeting and for three years from its branch offices. Thus, a crime in which financial statements have been prepared and published under Article 20(2)2 of the External Audit of Stock Companies Act shall be established by being kept at the principal office for one week prior to the date of the ordinary meeting.

(2) Meanwhile, under Article 20(2)2 of the External Audit Act, the facts charged against the violation of the Act on the External Audit and Inspection of Securities, for which the statutory penalty was prepared and published a false financial statement in violation of the accounting standards set by the Securities and Exchange Commission, is an offense punishable by imprisonment with prison labor for not more than one year or by a fine not exceeding five million won, and the statute of limitations has three years under Articles 250 and 50 of the Criminal Procedure Act, and Article 249(1)5 of the Criminal Procedure Act. The date of the general meeting of this case was March 20, 198. On the other hand, the date of the general meeting of this case was filed on March 16, 2001. Thus, if the prosecution of this case was made and published at the principal office before one week prior to the date of the general meeting of shareholders, as prescribed by the Commercial Act, the prosecution of this case may be deemed to have been instituted after the expiration of the statute of limitations.

If so, the court below should have examined when and after examining whether the false financial statements were kept and published at the head office, and then judged whether the statute of limitations of this case has expired, but further found the above facts charged guilty. This does not err in the misapprehension of legal principles as to the preparation and disclosure of false financial statements under the External Audit and Inspection Act, which affected the conclusion of the judgment. The ground of appeal pointing this out has merit.

4. Conclusion

Therefore, among the judgment of the court below, the appeal against Defendant 1 on the violation of the Act on the Special Cases concerning Nonindicted Co. 4 and the Act on the External Punishment (Misappropriation) and the violation of the Act on the Special Cases concerning Nonindicted Co. 4 and the Act on the Special Cases concerning the Violation of the Act on the External Punishment (Misappropriation) against Defendant 2 is with merit, and thus, the remaining grounds of appeal should be reversed without further review. The appeal against the Defendants on the violation of the Act on the Special Cases concerning the Nonindicted Co. 1 and the Act on the Special Cases concerning the Specific Economic Punishment (Misappropriation) concerning the Nonindicted Co. 1 shall be dismissed. Since the judgment against Defendant 1 became final and conclusive on April 17, 1997, the court below reversed the part of the judgment below on the violation of the Act on the Special Cases concerning the Nonindicted Co. 1 and the Act on the External Punishment (Misappropriation) concerning Nonindicted Co. 4 and the crime of violation of the Act after the above final and conclusive judgment, and remanded all of the appeal against Defendant 2 to the court below on the ground of appeal.

Justices Park Jae- Jae (Presiding Justice)