1. In the case of breach of trust, the term "an act in violation of the 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 the law, the content of the contract, or the good faith principle, or by doing an act that is anticipated not to perform as a matter of course (see Supreme Court Decision 2002Do758, Jan. 10, 2003, etc.) in light of the content and nature of the business to be dealt with (

In addition, the intention of the crime of occupational breach of trust is established in combination with the awareness that the person handling another's business affairs causes property damage to the principal and that the intention of his or her or a third party is in violation of his or her duties. The subjective element of the crime of occupational breach of trust (such as intention, motive, etc.) is the subjective element of the crime of occupational breach of trust in a case where the defendant denies the criminal intent by asserting that he or she committed an act at issue in his or her own interest, it is bound to prove indirect facts having considerable relation with the intention given the nature of the object, and what constitutes considerable relation indirect facts should be determined by the method of reasonably determining the link of facts based on the close observation or analysis power based on the normal empirical rule. Even if the defendant had an intention for his or her own interest, if it is proved that the defendant's intent for his or her own interest is only incidental, and that he or she has the principal intent for profit or damage, it shall be deemed that there was an intention of occupational breach of trust (see, e.g., Supreme Court Decision 2000Do4292.

On the other hand, the conviction in a criminal trial ought to be based on evidence with probative value, which leads a judge to have the conviction that the facts charged are true beyond a reasonable doubt. Thus, if there is no such evidence, even if there is a suspicion of guilt against the defendant, it is inevitable to determine it as the benefit of the defendant.

2. The court below found the following facts and circumstances based on its adopted evidence, and found Defendant 2 guilty of all the charges of this case against the Defendants on the ground that Defendant 2’s act of leakage of the data files of this case violated his duty under the good faith principle as an employee of Nonindicted Co. 1, thereby causing business losses to the amount of the non-indicted Co. 1 and obtaining the same amount of property gains to the non-indicted 2 Co., Ltd., and the above Defendant had the intention of the crime of occupational breach of trust, and Defendant 1, who did not have the relation of occupational breach of trust, conspired to the above act of occupational breach of trust by Defendant 2.

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

According to the evidence duly adopted by the court below, the defendants worked in Alice Co., Ltd. with Nonindicted Co. 3, and started working as business start-up personnel of Nonindicted Co. 1 established from Oct. 11, 204, and Defendant 1 work as production team leader, Defendant 2 was found to have worked as production team leader, and Defendant 2 was found to have worked as remaining in the dormitory on Nov. 1, 2005, upon request of Nonindicted Co. 1 to transfer personal files and family photographs stored in the computer to No. 200, and returned the computer files to Nonindicted Co. 1, the same date after they were transferred to No. 20, and the data files were transferred to Nonindicted Co. 1, Ltd. were not separated from No. 2’s 6,375, and the data files were not separated from the above data. The facts that Defendant 2 did not receive any other important data related to Defendant 1’s pecuniary gain at the time of copying the computer, but did not receive any other data from the aforementioned Nonindicted Co. 1, Ltd. 2.

In light of the legal principles as to the intent of breach of trust, Defendant 2 copied the data at the time when the file was copied, the Defendants’ wife at the time, the management status of Nonindicted Co. 1’s business data, and the circumstances that appear in the records, such as the Defendant’s use status after copying the data files of this case, in light of the aforementioned legal principles as to the intent of breach of trust, and Defendant 2 copied the data at the time when Defendant 2 did not properly recognize the specific contents and meaning of the data stored in the computer, and Defendant 1 also intended to find his personal files. Some of the aforementioned indirect facts recognized by the lower court are difficult to readily conclude that the Defendants conspired to divulge important data of the company and suffered damage to Nonindicted Co. 1.

Nevertheless, the court below held that the defendants' act of this case constitutes an act of occupational breach of trust against the damaged company and the defendants' intent to commit such an act constitutes an act of occupational breach of trust on the sole basis of the circumstances as stated in its reasoning is erroneous in the misapprehension of legal principles as to the establishment of occupational breach of trust and the intent thereof.

3. 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 Shin Young-chul (Presiding Justice)