A. Since the crime of breach of trust is established when a person who administers another’s business obtains pecuniary benefits by an act in violation of his/her duty and causes damage to another person, the subject of the crime must be in a position to manage another’s business. Here, in order to deal with another’s business, the principal of the crime must be in a position to manage another’s business. The principal of the crime should be in a position to protect or manage another’s property based on a fiduciary relationship between the principal and the parties, beyond a simple relationship of claims and obligations (Supreme Court en banc Decision 20

Where a pledge has been established on a claim against a third party obligor as a security for an obligation to another person, the pledger cannot extinguish the right under the pledge without the consent of the pledgee, or make any change detrimental to the rights of the pledgee (Article 352 of the Civil Act). In addition, where the pledger notifies the third party obligor of the fact of the pledge or the third party obligor has consented thereto, even if the third party obligor pays the obligation subject to the pledge without the consent of the pledgee, it cannot be set up against the pledgee, and the pledgee still may demand the third party obligor to pay the debt directly or deposit the amount to be paid (Article 353(2) and (3) of the Civil Act). Therefore, in such a case, it cannot be said that the pledgee was paid the debt subject to the pledge in relation to the pledgee, and in relation to the pledgee, it cannot be said that the pledgee caused any damage or damage to the pledgee by performing his/her business in violation of the duties, and that the crime of breach of trust is not established.

B. The summary of the facts charged in this case is as follows.

Around July 15, 2011, the Defendant entered into a lease agreement to lease the deposit amount for a fixed period of two years from August 5, 2011 to August 5, 2013, the Defendant: (a) applied for a loan from the victim Nonindicted Co. 2 (hereinafter “victim”); (b) obtained a loan of KRW 120 million to Nonindicted Co. 1; (c) as security, the Defendant created a right to claim the return of the deposit amount as the object of the pledge right without the consent of the pledgee; and (d) accordingly, the Defendant should not extinguish the right to claim the return of the deposit amount as the object of the pledge right or not change the pledgee’s interest.

Nevertheless, on July 2013, the Defendant: (a) sold the above apartment to Nonindicted 3 and Nonindicted 4 on September 2, 2013; and (b) sold the said apartment to Nonindicted 1; and (c) on the same day, on September 2, 2013, the Defendant received KRW 89,225,520 in total from Nonindicted 1 and buyer, Nonindicted 3, Nonindicted 4, and Licensed Real Estate Agent 5, etc., and from the buyer, the sum of KRW 89,25,520 in the name of the deposit for direct lease from Nonindicted 1 and buyer, and received KRW 50,74,480 in total from Nonindicted 1.

As a result, the Defendant violated his duties, thereby causing damages equivalent to KRW 160 million to the victim of the above lease deposit by extinguishing the right to claim the return of the deposit against the above lease contract and the non-indicted 1.

C. The court below maintained the first instance judgment convicting the borrower of the charges of this case on the ground that, in ordinary relation to a loan for consumption and loan for money, the borrower's obligation to repay the loan to the borrower is merely his own debt and cannot be deemed as another person's business. However, in case where the borrower entered into a contract to establish a right to pledge with the borrower as a secured obligation, the borrower is in a position to cooperate in protecting or managing the property of the lessee, such as the right to pledge, pursuant to the contract to establish a right. Therefore, the defendant, who has a right to pledge, constitutes "a person who administers another's business," and the defendant's obligation to repay the deposit for lease, 160 million won, constitutes

D. However, in light of the above legal principles, it is difficult to accept the above judgment of the court below.

(1) According to the reasoning of the lower judgment and the evidence duly admitted, the following facts are revealed.

① On July 15, 2011, the Defendant was granted a loan of KRW 120 million from the victim, and the Defendant offered as security the amount of KRW 160,000,000,000,000 for the full amount of the Defendant’s claim for the refund of the deposit for lease on a deposit basis to Nonindicted 1, the Defendant set up a pledge to KRW 156,000,000 for the full amount of the claim for the refund of the deposit

② Around that time, Nonindicted 1 prepared a written consent of the pledge that “the Defendant’s claim for the repayment of the deposit on a deposit basis shall be accepted by the pledgee and the pledgee, without any objection, in setting a pledge against the victim” and delivered to the victim.

③ After that, on September 2, 2013, the Defendant received and consumed a total of KRW 140 million from Nonindicted 1, a lessor as a deposit for lease on a deposit basis.

(2) According to the above facts, inasmuch as a lessor Nonindicted 1, who was the neighboring pledgee for the claim for the return of the deposit on a deposit basis, has met the requisite for setting up against the victim by preparing a written consent of the pledge as above and delivering it to the victim with the consent of the pledge, even if the lessor Nonindicted 1 repaid the deposit to the defendant without the consent of the victim, it cannot be set up against the victim, and thus, the victim still can exercise the right as a pledgee against Nonindicted 1. Ultimately, on the ground that the Defendant was reimbursed for the deposit for the return of the deposit on a deposit, which is the object of the pledge, and the Defendant, who was the pledger, was in charge of another’s business in relation to the pledgee, and cannot be deemed to have caused any damage or damage to the victim by doing acts

(3) Nevertheless, the lower court found the Defendant guilty of the facts charged on the grounds as indicated in its reasoning. In so doing, the lower court erred by misapprehending the rules of evidence, misapprehending the legal principles as to the act of breach of trust, breach of duty, and property damage, which affected the conclusion

2. The judgment of the court below is reversed without examining the remaining grounds of appeal, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Shin (Presiding Justice)