[2] Obligations to customers of a securities company and status of others

[3] Subjective requirements for occupational breach of trust

[4] If an employee of a securities company purchases shares with a customer's deposit without a customer's purchase order, and damages occur due to a decline in the market price of shares, the nature of the occupational breach of trust

[2] Before an entrustment contract with a customer and a securities company is established, the securities company shall use the deposit deposited by the customer at the time of entering into the transaction account only for the settlement purpose of the transaction, only if the customer orders the transaction. A person who bears an obligation not to cause damage to the customer’s account by conducting the transaction without the customer’s order, is in the position of performing another person’s business on behalf of others on the basis of a fiduciary relationship with the customer.

[3] For the establishment of a crime of occupational breach of trust, there is a subjective perception that the principal causes or is likely to cause property damage to the principal as a result of the act of occupational breach of trust, and there is a perception that the principal or a third party gains property benefits, and there is no need to obtain the intention to cause property damage to the principal, or property benefits to the principal or a third party.

[4] If an employee of a securities company purchases shares without the consent of the customer, it shall be deemed that there was an incomplete perception that the damage to the customer would have been caused by the decline in the market price of shares if he purchased shares without the consent of the customer. Since the securities company, as long as he acquired the commission due to the purchase of shares, it is deemed that the employee or a third party was aware that he or she would have obtained property gains, there is sufficient room to deem that the employee had the intention of breach of trust. If there is an objective circumstance to deem that the employee's act was based on the intent of pursuing the customer's interest, it shall be deemed that there was an intention of breach of trust in the course of business. However, in this case, there is no transaction relationship between the securities company and the victim, and in light of the fact that the employee purchased shares without the consent of the victim, it is only incidental, and it is reasonable to deem that there was an intention of breach of trust in the course of business.

1. Summary of the facts charged of occupational breach of trust

According to the reasoning of the judgment of the court below, the defendant is a person who is engaged in the sale and purchase of shares while working as an employee at the Silung-si branch of the non-indicted Securities Co., Ltd....., and around 11:00 on February 13, 1992, at the above branch of Silcheon-dong 299-13 of Silcheon-dong 299 deposited KRW 45,00,000 with the fund for purchase of shares. Since there was no purchase order from Dong Dong-dong, Dong-dong 299, the defendant violated his duty even though he had a duty to not purchase shares, and around that time, purchased KRW 5,00 shares of the non-indicted corporation 5,00 from the 17th of the same month to purchase KRW 44,444,263 from the 17th of the same month, thereby causing property damage equivalent to the above victim.

2. Summary of the judgment below

According to the reasoning of the judgment below, the court below found the defendant not guilty of the crime of occupational breach of trust on the ground that the defendant's purchase of the non-frequency stocks of this case without prior consent from the victim is recognized, but in order to establish the crime of breach of trust, the person who administers another's business with the intention of acquiring property profit for himself or a third party, i.e., the intention of acquiring property profit for him or the third party, and even if the defendant's act has inflicted damage on the principal as a result of the defendant's act of violation of one's duty, such act is done for the principal, and it does not constitute the crime of breach of trust unless it is limited to the intention of himself or the third party's property profit.

3. Judgment of party members

Unless there are special circumstances, a transaction agreement entered into between a customer and a securities company is merely a basic relationship applicable to a continuous transaction relationship between a customer and a securities company, and thus, does not immediately execute a transaction entrustment contract, and only when a customer makes an order for purchase based on a transaction account establishment contract, a transaction entrustment is made (see, e.g., Supreme Court Decisions 92Do3199, Sept. 10, 1993; 93Da2632, 2649, Dec. 28, 1993; 93Da26649, Dec. 28, 1993). Before such a transaction contract is concluded between a customer and a securities company, a securities company uses the deposit deposited by a customer at the time of the transaction account establishment contract only for the settlement of the transaction, and a person who bears an obligation not to cause damage to the customer's account without permission, and is in the status of performing other person's business as an agent's property management based on a trust relationship with the customer.

However, for the establishment of the crime of occupational breach of trust, there is sufficient awareness that the principal may incur or threaten property damage to the principal as a result of the act of occupational breach of trust, and that there is a perception that the principal or a third party would gain property profit, and there is no need to obtain the intent to cause property damage to the principal or a third party (see, e.g., Supreme Court Decisions 87Do1436, Feb. 23, 198; 89Do25, Aug. 8, 1989). In this case, if an employee of a securities company as an employee of a securities company of a securities company purchased the US stocks of this case without the consent of the customer, as determined by the court below, if the defendant purchased the US stocks of this case without the consent of the victim, as determined by the court below, there is insufficient awareness that the above securities company, on which the defendant is working, had an intention or a third party to obtain property profit of 20 won due to the purchase of the US stocks of this case, and thus, there is sufficient room for the defendant to obtain property profit of 315.

If there are extenuating circumstances that the defendant's act was based on the will of the customer's interest, it should be viewed differently. However, in the case of this case, there is no transaction relationship between the above securities company and the victim, and in light of the fact that the defendant purchased the above deposit without permission since the victim did not have deposited the above deposit, it is only incidental, and it is reasonable to view that there was an intention of breach of trust in the course of business because it is the intent of profit or loss (see Supreme Court Decision 88Do1523, Nov. 22, 198).

Nevertheless, the court below judged that there is no evidence to acknowledge the above intention of the defendant, and found the defendant not guilty of the crime of occupational breach of trust cannot be said to have erred by misapprehending the legal principles on the intention of the crime of occupational breach of trust or by misunderstanding the facts in violation of the rules of evidence, and it is clear that such illegality has affected the conclusion of the judgment. Therefore, the grounds for

4. Therefore, the non-guilty part of the judgment of the court below is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Cho Chang-tae (Presiding Justice)