[2] The case holding that in a case where the defendant was prosecuted for violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Misappropriation) on the ground that he suffered property damage on the ground that he did not constitute "a person who administers another's business" in the crime of breach of trust in the crime of breach of trust on the ground that he did not constitute "a person who administers another's business" in the crime of breach of trust on the ground that he did not constitute "a person who administers another's business" in the crime of breach of trust

[2] In a case where the Defendant was indicted on charges of violating the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Misappropriation) on the ground that he received a loan of one billion won as a construction fund necessary for the construction of a new building from a community credit cooperative, and entered into a security trust contract or fund management agency contract with the trust company Eul as the first beneficiary, the Defendant as the beneficiary, and the trust company as the beneficiary after the completion of the construction of the building in accordance with the terms and conditions of the contract, despite the duty to guarantee the first priority of the trust right of the Party A, the Defendant breached the duty to guarantee the first priority of the trust right of the Party A, thereby causing property damage to the Company A in the future, the case holding that the Defendant was the land subject to the trust contract with the Company B and the treasury, and it is difficult to accept the trust registration of the building in the future as the trustee, since it is difficult to establish the trust contract with the Party A as the first beneficiary, and that the additional trust agreement with the Party A merely agrees to secure the above obligation to guarantee the trust interest of the Party A as the trust contract.

1. Summary of the facts charged in this case

Defendant 1 received a loan of KRW 1 billion from the victim’s non-indicted 1 community credit cooperative (hereinafter “victim’s community credit cooperative”) to construct a building (hereinafter “instant building”) on the ground of the land (hereinafter “instant land”), and entered into a security trust contract and fund management agency contract with the trustee, the victim’s depository, and the truster and the beneficiary as well as Defendant 1. The main contents of the instant contract are that Defendant 1 cannot arbitrarily dispose of the instant land and the instant building until the trust purpose is achieved, and if the instant building is completed in the future, the instant building shall be registered as trust company in the future, and the proceeds, etc. from sale of the instant building shall be managed by Non-indicted 2 trust company and the repayment of loans, etc. to the victim’s depository is made.

Therefore, Defendant 1 had the duty to guarantee the preferential right to benefit of the victim’s safe by registering the trust in Nonindicted 2 trust company after completing the registration of preservation of ownership after completing the instant building.

Nevertheless, Defendant 1, in collusion with Defendant 2, obtained pecuniary benefits equivalent to KRW 1 billion by completing registration of preservation of ownership of the building of this case in violation of the above duties, and caused property damage equivalent to the same amount in the safe of the victim.

2. The judgment of the court below

The court below affirmed the judgment of the court of first instance that found Defendant 1 as a person who administers another's business in relation to the victim's safe, and Defendant 2 as a co-principal of breach of trust by actively participating in Defendant 1's breach of trust and thereby convicted the Defendants of the charges.

3. Judgment of the Supreme Court

A. Since the crime of breach of trust is established when a person who administers another’s business obtains pecuniary benefits or causes a third party to obtain such benefits through an act in violation of one’s duty, the subject of the crime must be in a position to deal with another’s business. Here, to be “a person who administers another’s business,” the subject of the crime must be in a position to deal with the other’s business. The subject of the crime should be in a position to protect or manage another’s property based on a fiduciary relationship between the parties beyond an ordinary contractual relationship, such as where all or part of the business regarding the management of another’s property is performed on behalf of the other party (see, e.g., Supreme Court en banc Decision 2008Do10479, Jan. 20, 201; Supreme Court en banc Decision 2014Do363, Aug. 21, 2014; Supreme Court en banc Decision 2019Do9756, Feb. 20, 20200).

B. Examining the facts acknowledged by the lower judgment and the first instance judgment invoked by the lower court in light of the aforementioned legal doctrine, the lower court’s aforementioned determination is difficult to accept for the following reasons.

1) Real estate subject to a security trust agreement concluded between the non-indicted 2 trust company and the victim’s treasury is the instant land. The instant building is not registered as a trust pursuant to the above contract, but is merely an agreement to enter into a security trust agreement with the non-indicted 2 trust company as the trustee, the victim’s safe trust company as the first beneficiary, and to implement the registration procedure.

2) As above, it is reasonable to view that the Defendant’s safe will secure the repayment of the claim for loans against Defendant 1 with respect to the instant building. It is reasonable to view that the Defendant’s principal interest is not whether the instant building is registered as a trust, but is in the recovery of the claim for loans.

3) When the instant building is completed in relation to the victim’s safe in the future, Defendant 1 entered into a security trust agreement and a fund management agent contract for the instant building with the trust company, and accordingly, is merely a civil obligation to guarantee the priority of the victim’s safe right to benefit. The “victim’s preferential right to benefit” is only guaranteed as a result if Defendant 1, the contracting party, the victim’s safe, and Nonindicted Party 2’s trust company faithfully perform their respective duties as agreed upon.

4) Ultimately, it is difficult to view that Defendant 1 is in the position of a person who administers his/her business, such as protecting or managing the victim’s preferential right to benefit, based on a fiduciary relationship with the victim’s imprisonment without labor, beyond an ordinary contractual relationship. Therefore, Defendant 1 does not constitute “a person who administers another’s business” in the crime of breach of trust.

C. Therefore, the court below erred by misapprehending the legal principles as to the meaning of “a person who administers another’s business” in the crime of breach of trust, thereby adversely affecting the conclusion of the judgment. The ground of appeal

4. Conclusion

Therefore, 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 Lee Ki-taik (Presiding Justice)