1. Judgment on the grounds of appeal by the prosecutor

Examining the reasoning of the judgment below in light of the records, the court below is justified in holding that: (a) the investment amount of KRW 600 million paid by Nonindicted Co. 1 (hereinafter “Nonindicted Co. 1”) to Nonindicted Co. 2 Co., Ltd. (hereinafter “Nonindicted Co. 2”) out of the total investment amount is either P&A for the import and distribution of film “○○○○○” or part of the total investment amount that is not specified in its use; (b) Non-Indicted Co. 2 may be deemed money used as royalties or advertising advertising expenses to open the film “○○○○○○○” for the import and domestic opening of the film; and (c) the evidence submitted by the prosecutor alone is insufficient to find that the Defendants deceptiond Non-Indicted Co. 1 to use the investment amount as balance for the import of “○○○○○,” or received investment from Non-Indicted Co. 1 without any intent or ability to open the “○○○○,” and there is no error in the misapprehension of legal principles as to fraud, contrary to logical and empirical rules.

2. Judgment on the Defendants’ grounds of appeal

A. The crime of breach of trust is established where “a person who administers another’s business” acquires property benefits through a violation of his/her duty and causes damage to another person who is the subject of the business. Thus, the subject of the crime is required to be a person who administers another’s business. In order to be “a person who administers another’s business,” the principal of the crime must be a person who manages another’s business, and the principal of the crime must be a person who protects or manages another’s property based on a fiduciary relationship beyond a simple obligation and obligation. In addition, even in cases where the principal of the relationship is more beneficial to another person or bears a duty to manage another person’s business, it cannot be said that the person is in a position to manage another’s business, not a person’s business (see, e.g., Supreme Court Decisions 86Do2490, Apr. 28, 1987; 200

B. Based on its adopted evidence, the lower court found the Defendant guilty of having committed an act of transferring a theater distribution right and additional sales right (such as public waves, IP-TV, CATV, V HS/DD, Internet VD, etc.) to Nonindicted Company 1 to secure the repayment of investment funds by concluding a film investment distribution contract with Nonindicted Company 1 on July 18, 2008, and being invested in the film revenue amount, and thus, the Defendant offered the film “△△△△△,” etc. to Nonindicted Company 1 as a security for transfer, and thus, should not engage in an act of transferring a theater distribution right and additional sales right to the said film until the investment amount is repaid. However, even though there was a duty of not to do so, in collusion in violation of the said duty, the Defendant acquired the extreme distribution right and additional sales right to the film “△△△△△△,” which received KRW 150 million from Nonindicted Company 3 (hereinafter “Nonindicted Company 3”) with property damage equivalent to KRW 100,500,000.

C. However, according to the reasoning of the lower judgment and the record, if the Defendants’ operation of Nonindicted Company 2 entered into a film distribution contract with Nonindicted Company 1 on July 18, 2008, and received investment funds from Nonindicted Company 1, and agreed to provide extreme distribution and value-added tickets of “△△△△△△△△△” with extreme distribution right and value-added right as security for the sake of redemption of the principal and interest on investment. Nonindicted Company 1 still delivered to Nonindicted Company 1 a certificate of transfer of a theater distribution right and value-added right of “△△△△△△△△” with the contents of “○○○”’s movie distribution right and value-added right. In the event that Nonindicted Company 1 fails to recover the investment funds on the film “○○○○”, Nonindicted Company 2 and Nonindicted Company 2 were to collect the principal and interest on investment from Nonindicted Company 2 in the way of distributing the film to the theater△△△△△△△△△△△△△△△△△△△, and to receive the principal of investment from Nonindicted Company 20.

In light of the above facts, since the film import contract that Nonindicted Company 2 entered into with △△△△ was a license agreement for the copyrighted work, Nonindicted Company 2 is entitled to use the film “△△△△△△” within the scope of the usage method and conditions permitted by △△△, barring any special circumstance, even if Nonindicted Company 2 transferred the right to use the film “△△△△△△△” to a third party, it cannot be exempted from its obligation to △△△△. Thus, even if Nonindicted Company 2 agreed to provide the film “△△△△△” to Nonindicted Company 1 as “transfer”, it cannot be concluded that Nonindicted Company 2 established the extreme distribution right and additional sales right with respect to the film “△△△△△△△△△△△△△△△” and it cannot be concluded that Nonindicted Company 2 established a valid transfer right with respect to the movie “△△△△△△△△△△△△△” in a legal sense. Rather, even though it was difficult to view that the Defendant 1 was in charge of performing the business of collecting the principal and interest from the investment installment.

Therefore, the lower court should not be readily concluded that Nonindicted Company 2 had the duty to not engage in any act, such as transferring the extreme distribution right and additional sales right to film “△△△△” and additional sales right, until the investment of Nonindicted Company 1 was repaid, on the premise that Nonindicted Company 2 created a valid security right to transfer and preserve the assets of Nonindicted Company 1 or bear the duty to cooperate in the act of preserving the assets of Nonindicted Company 1, by further examining whether Nonindicted Company 2 may establish a security right to use film “△△△△” with respect to the right to use film “△△△△” in accordance with the foregoing legal doctrine.

Nevertheless, the judgment of the court below which convicted of this part of the facts charged in breach of trust without doing so is erroneous in the misapprehension of legal principles as to permission to exploit copyrighted works and other person's duties, which are the elements for establishing the crime of breach of trust, which

3. Conclusion

The Defendants’ remaining grounds of appeal are omitted. Of the judgment below, the part of the judgment of conviction against the Defendants is reversed, and this part of the case is remanded to the court below for a new trial and determination. The Prosecutor’s appeal is dismissed as it is without merit. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Sang-hoon (Presiding Justice)