[2] The case holding that the act of the president of a non-profit incorporated foundation constitutes a breach of trust, regardless of whether the act of the president of a non-profit incorporated foundation is legally effective as a matter of permission of the

[2] The case holding that where a non-profit incorporated foundation's chief director entered into an agreement with the non-profit incorporated foundation to sell fundamental property in fact by changing the name and purpose of the incorporated foundation so that the non-indicted is able to conduct a business intended by the non-indicted after passing the operation of the incorporated foundation in a way of replacing the photo, etc. as the direct sale of basic property was impossible with the non-indicted who had the intention to purchase and use basic property for a purpose other than the purpose of its establishment, regardless of whether the agreement is legally valid as a matter of permission of the competent authority, it constitutes a breach of trust, regardless of whether it is a valid agreement in force

1. The summary of the facts charged in this case is that the defendant is working as the chief director of the non-indicted foundation, and the above foundation is to establish a religious training program based on the spirit of Doctrine established by contributing 3,40,000 square meters (hereinafter "the forest of this case") located in the non-indicted 1, who was located in the non-indicted 3 foundation, and to establish a new religious training program, and to establish a Doctrine, Doctrine, individual Doctrine, youth training and Doctrine project facilities, and installation of Doctriwon for Doctrine for 10 years after its establishment, and to replace the above foundation with the above purpose of selling the forest of this case for 10 years after its establishment without any import of the forest of this case, which is the basic property of the non-indicted 1, and to establish a hotel with the above non-indicted 3 foundation to replace it with the above purpose of selling it to another foundation in violation of the purpose of 9's basic property and its ownership.

2. On this issue, the court below affirmed the judgment of the first instance court that found the defendant not guilty on the ground that, in this case, there is no evidence to acknowledge that the defendant concluded a sales contract to sell the basic property of the Foundation to the non-indicted 1 and did not have any effect on the property status of the Foundation itself, since the disposition of basic property of the Foundation resulted in the amendment of the articles of incorporation of the Incorporated Foundation. Thus, since the amendment of the articles of incorporation of the Incorporated Foundation would not take effect without the permission of the competent authority, the contract of basic property sales of the Incorporated Foundation without the permission of the competent authority cannot affect the property status of the Incorporated Foundation itself. Meanwhile, the period of commencement of the crime of breach of trust is the time of commencement of the act of breach of trust with the intention of breach of trust with the intention of breach of trust. Thus, when the representative of the Incorporated Foundation disposes of the basic property of the Foundation unfairly, the time of establishment of the act of breach of trust with the permission of the competent authority can be deemed to have commenced the act of breach of trust.

3. However, the crime of breach of trust is established by a person who administers another's business in violation of his/her duty to obtain, or let a third party obtain, pecuniary benefits. In this case, an act in violation of his/her duty constitutes an act in violation of the provisions of law, terms of a contract, or the principle of good faith, or an act expected not to perform as a matter of course in light of the specific circumstances, such as the content and nature of the business to be dealt with, and thus, it does not need to be considered whether such an act in violation of a fiduciary relationship with the principal is legally effective (see Supreme Court Decision 94Do3013, Dec. 22, 1995). Thus, if the defendant, as the chief director of a nonprofit foundation, violates his/her duty to maintain and develop the incorporated foundation in violation of his/her establishment purpose, and sells the forest of this case, which is fundamental property for any purpose other than the purpose of establishment, to obtain permission from the competent authority to directly sell it to another foundation, and thus, it constitutes an act in violation of trust with 300 billion won.

Furthermore, the problem is that the act of breach of trust in this case is problematic with the non-indicted 1, who is the chief executive officer of the Incorporated Foundation and operates the Incorporated Foundation with the intention to use the basic property in violation of the purpose of the incorporation of the Incorporated Foundation, and in order to purchase the basic property with the intention to use it in violation of the purpose of the Incorporated Foundation's incorporation, the effect of selling the basic property is gained by changing the purpose of the Incorporated Foundation by using a photo, etc. which is not the direct sale method of the basic property which is virtually impossible due to the necessity of the permission by the competent authority, but the new photograph, etc. replaced thereafter, the agreement was concluded to receive 3 billion won in return for the implementation or cooperation of the procedure, and the part of the consideration was received, unlike the direct disposal method of the basic property, and the agreement was not affected by the permission of the competent authority. However, the alteration of the purpose in the articles of incorporation is necessary to obtain permission from the competent authority, and there is no change in the purpose in the articles of incorporation of the Incorporated Foundation (the defendant seems to be responsible for this problem).

Nevertheless, the court below determined that since the defendant's act of breach of trust was an act of disposal of fundamental property without examining the above before and after the above circumstances, it cannot be deemed that the defendant started an act of breach of trust on the sole ground of legal invalidation unless the competent authority's permission is granted. Such judgment of the court below is erroneous in understanding the facts or misunderstanding the legal principles on the crime of breach of trust, which affected the conclusion of the judgment. The appeal

4. 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 Cho Cho-Un (Presiding Justice)