[2] In a case where the head of the headquarters of the taxi company Gap et al. was indicted for occupational breach of trust on the ground that the defendant, who is the negotiating member of the regional headquarters of the National taxi trade union of Korea and the local taxi transport business association, the employers' association, agreed to use part of the reduced value-added tax for expenses to be borne by the transportation business entity under the collective agreement without the consent of a majority of workers, the case holding that the judgment below which found the defendant guilty on the ground that the defendant cannot be deemed to have a position of a person who directly administers his affairs

[2] In a case where the head of the taxi company Gap, who is the negotiating member of the regional headquarters of the National taxi trade union of Korea, is charged with occupational breach of trust on the ground that he paid only part of the value-added tax reduction amount to employees, without the consent of a majority of drivers who are employees, and caused damages to employees by the agreement that he would be able to use the remainder of the reduced amount of value-added tax to employees, the case held that the judgment below erred in the misapprehension of legal principle on the grounds that the tax amount of value-added tax under the former Restriction of Special Taxation Act (amended by Act No. 8146 of Dec. 30, 2006) belongs to the general taxi transport business operator who is the obligor and drivers do not acquire the direct judicial right against the transport business operator, and the above agreement is characterized as collective agreement that the head of the regional headquarters and negotiating member of the local headquarters delegated with the authority of the local headquarters concluded with the local taxi transport business association of Korea and the local taxi transport business association of which are the members of the headquarters.

1. The crime of breach of trust is established when a person who administers another's business obtains pecuniary advantage or has a third party obtain it from an act contrary to his/her duty, thereby causing damage to the principal. The "person who administers another's business" as the principal refers to a person who acts on behalf of another person or cooperates in the preservation of another's property on the basis of a fiduciary relationship (see, e.g., Supreme Court Decisions 2003Do763, Sep. 26, 2003; 2002Do7340, May 13, 2004; 2006Do8832, May 10, 2007).

2. After compiling the adopted evidence, the court below acknowledged the facts as stated in its reasoning, and determined that the Defendant committed occupational breach of trust against the Defendant on the ground that the Defendant, as the chief bargaining member of the labor union and delegated the authority to negotiate the issue of wages, welfare, etc. on behalf of workers with the private company, and that the Defendant’s negotiation with the company extends to the employees. The Defendant was in a position to handle another’s business, and the Defendant committed an act of breach of trust against another’s business by failing to obtain prior consent from the majority of the employees of the workplace, and even if the employees did not have the right to claim the amount of value-added tax reduced for the taxi company, even though they could have sufficiently expected to receive the full amount of cash, resulting in the risk of property damage from an economic perspective due to

3. However, we cannot agree with the judgment of the court below for the following reasons.

A. Comprehensively taking account of the evidence duly adopted and examined by the lower court, the following facts are revealed.

(1) Article 100-2 of the former Regulation of Tax Reduction and Exemption Act (wholly amended by Act No. 4952, Aug. 4, 1995) provides that a general taxi transport business entity under the Automobile Transport Business Act shall be exempted from 50/100 of the amount of the value-added tax payable. The purpose of the amendment is to improve the treatment and welfare of general taxi drivers, and the Ministry of Construction and Transportation provides administrative guidance for general taxi transport business entities to use the amount of the value-added tax reduced in compliance with the purpose of the amendment above.

(2) Article 40(2) of the Regulations on the Federation of Korea Military Workers' Unions (hereinafter referred to as the "former Union") provides that affiliated organizations and trade unions shall delegate their right to collective bargaining and conclude a collective agreement to the head of the regional headquarters when intending to conduct regional bargaining, and that NAE shall re-consign to the head of the regional headquarters. Article 31(1)2 of the former Union provides that the president of the former Union shall have the right to collective bargaining and conclude a contract, but all of the affiliated organizations of various levels shall re-consign the former president to the head of the headquarters under the former Federation. Article 33(1) of the Regulations on the Operation of the former Federation shall be the representative of the affiliated organization to conclude a collective agreement. Article 34(1) provides that where an affiliated organization intends to conclude a collective agreement, the latter shall enter into a collective agreement jointly.

(3) The Busan Regional Headquarters, which is a regional headquarters under the Jeonnam-do Branch, (hereinafter “Seoul Central Headquarters”), consists of 90 divisions, including Nonindicted Co. 1 Company (hereinafter “Nonindicted Co. 1”), and the Defendant, the head of Nonindicted Co. 1 Company, was elected as the negotiating members of the Jeonsan Busan Central Headquarters around January 2004, together with Nonindicted Co. 2, 3, 4 and 5.

(4) On September 30, 2004, the director non-indicted 6 and the above five negotiation members agreed that the value-added tax reduction amount from 2004 to 2006 shall be paid to the first-party worker, 75,000 won, and 60,000 won to the second-party worker, and that the remainder of the value-added tax reduction amount excluding the above amount and the Trade Union Welfare Fund shall be used for the cost of welfare and treatment improvement for each company.

(5) Since then, there were frequent disputes between labor and management regarding the use of the amount of value-added tax reduced for general taxi transport business operators, Article 106-4 (2) of the former Restriction of Special Taxation Act (amended by Act No. 7322 of Dec. 31, 2004 and enforced January 1, 2005; hereinafter the same) stipulates that the amount of value-added tax reduced shall be used for the improvement of treatment and welfare of general taxi transport business operators as prescribed by the Minister of Construction and Transportation.

(6) Accordingly, on April 2005, the Ministry of Construction and Transportation prepared the “Guidelines for Use of Tax Reduction of Value-Added Tax on Taxis” (hereinafter “the Guidelines”), and the main contents thereof are used only for the purpose of improving the treatment and welfare of workers, and the employer shall pay the full amount of the value-added tax to the individual workers in cash. However, only where workers who are more than a majority of each workplace use part of the reduced tax amount in cash other than cash, they can be used as the pretext of improving the treatment and welfare of workers, and they are banned from using the portion of the tax reduction amount imposed by the employer prior

(7) On December 31, 2005, 2005, the head of the headquarters, Nonindicted 6, and the five negotiation members of the headquarters of the Busan Metropolitan City Headquarters concluded a collective agreement with the Busan Taxi taxi transportation business association. The said collective agreement included the content that the company would pay two-time driving uniforms a year, provide food to non-members, and the payment system of school expenses would follow a separate agreement.

In addition, on the same day, the head of the headquarters, Nonindicted 6, and the five of the five of the negotiations members of the headquarters of the Dasansan Busan District Headquarters made an agreement on the following: (a) monthly payment of KRW 40,000 per month to the Busan taxi transportation business association, and KRW 30,000 per month to the second-person primary worker; and (b) monthly payment of KRW 30,000 per month to the second-person primary worker; and (c) use driving clothes, meals, and school expenses specified in the collective agreement as the amount of

Accordingly, Nonindicted Co. 1 paid part of the amount of value-added tax reductions directly to its employees, and used the remainder for driving clothes, meals, school expenses, life-saving gifts, regional labor unions, and unit labor assistance.

B. With respect to the legal nature of the amount of value-added tax reduced and the subject of attribution, the amount of value-added tax reduced following the amendment of the former Restriction of Special Taxation Act is attributed to the general taxi transport business operators, who are obligated to pay the amount of value-added tax reduced. The purpose of the amendment of the former Restriction of Special Taxation Act is to improve the treatment and welfare of general taxi drivers. Accordingly, even if the Ministry of Construction and Transportation provides for the Ministry of Construction and Transportation for the use of the amount of value-added tax reduced for the improvement of treatment of general taxi transport business operators in accordance with the purport of the above amendment, it is merely an administrative guidance for general taxi transport business operators and cannot be seen as an order under the Ministry of Construction and Transportation. Thus, the Ministry of Construction and Transportation’s guideline does not directly acquire a private legal right against general taxi transport business operators with respect to the amount of

C. As above, general taxi drivers do not have a direct right to claim the amount of value-added tax reduced, the defendant agreed in the position of the negotiating member of the Busan Busan Headquarters, and the agreement of this case was concluded with the head of the Busan Headquarters and five negotiating members delegated the authority to conduct collective bargaining and sign collective agreements with the Busan Busan Headquarters, which are employers' organizations. In light of the content and form of the agreement of this case, the agreement of this case is deemed to have the nature of a collective agreement as to the working conditions of general taxi drivers, who are members of the Busan Headquarters, as members of the Busan Headquarters. In light of the contents and form of the agreement of this case, the agreement of this case was concluded by the defendant as the negotiating member of the Busan Headquarters, and it is deemed that the conclusion of the collective bargaining and sign collective agreements with the Busan Headquarters was made by the defendant, and it is necessary to protect the rights and interests of the members of the Busan Headquarters, but it is not the status of the defendant to directly handle the affairs of the members of the Busan Headquarters.

D. In addition, the amount of value-added tax reduced is attributed to a general taxi transport business entity, who is a payment obligor, and a general taxi driver does not acquire a direct judicial right to the amount of value-added tax reduced for a general taxi transport business entity. In light of the fact that Nonindicted Company 1 paid part of the amount of value-added tax reduced directly to its employees, and used the remainder for its employees, such as full driving clothes, food, school expenses, donation, gift, local labor union, unit labor union, etc., it is difficult to deem that the instant agreement has caused any property damage to its employees.

E. Nevertheless, the court below erred by misapprehending the legal principles on the status of "a person who administers another's business" and the occurrence of damages in the course of occupational breach of trust to recognize the establishment of occupational breach of trust against the defendant, on the ground that the defendant is in the position of a person who administers the business of workers who are members of the Jeonsan Busan Headquarters.

4. Therefore, without further proceeding to decide on the remaining grounds of appeal, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Il-young (Presiding Justice)