[1] Where a director, etc. of a company lends company funds to another person constitutes a crime of occupational breach of trust

[2] Whether the intent of the crime of breach of trust can be acknowledged even if the third party acquiring profits is an affiliated company of the same third party and was committed for the purpose of the rehabilitation of the entire affiliated company (affirmative)

[3] Whether the risk of new damage may be deemed to have been incurred in a case where a guarantor, who has no means to repay, provided a new fund or provided a security for a new loan to a person who has no means to repay the debt, provided a security for the repayment of the debt already guaranteed (negative)

[4] The case holding that where a company A belonging to a large enterprise group was unable to pay a discounted bill under the payment guarantee of a merchant bank and the merchant bank was required to pay a bill in real and specific manner, it cannot be deemed that it does not pose a risk of causing a separate loss, inasmuch as the company B and C, which is an affiliated company of the same group, which guaranteed joint and several liability based on a bill transaction agreement with the merchant bank, provided that the company B and C, which provided joint and several

[5] Where multiple occupational breach of trust constitutes an inclusive crime

[1] The crime of breach of trust is established when a person administering another's business obtains pecuniary benefits or causes a third party to obtain such benefits by an act in violation of one's duty. In this case, the term "act in violation of one's duty" includes any act in violation of a fiduciary relationship with the principal by failing to perform an act that is naturally expected to not perform or by performing an act that is expected not to perform as a matter of course under the provisions of law, terms of a contract or the good faith principle in light of specific circumstances, such as the content and nature of the business, and includes not only cases where a loss is actually incurred but also cases where a risk of actual loss in property arises. Therefore, in lending company funds to a third party by a director, etc., if the director, etc. of a company knew of the fact that it would cause loss to the company if the third party had already lost its ability to repay debts and lent funds to him/her without taking reasonable measures to recover debts, such lending is an act that causes loss to another person and causes loss to the company, and such act does not change merely because it constitutes a crime of breach of trust.

[2] In order to establish a crime of occupational breach of trust, the perception of occupational breach of trust as a subjective element and thereby requires the awareness that the person himself/herself or a third party acquires the benefit and thereby causes damage to the principal, i.e., intent of breach of trust. Such recognition is sufficient with dolusent perception. As such, even if a third party who acquires the benefit is an affiliated company of the same third party, and the result of the act was conducted for the purpose of the rehabilitation of the entire affiliated company group, and is part of the principal, the intent for the benefit of the principal is only an incidental, and if it is proved that the intent of the benefit or damage is the principal,

[3] In a case where the principal has already guaranteed another person's obligation, and the principal has no sufficient means to pay the principal debt, which eventually is likely to cause the guarantor to pay the principal debt. If the principal provides new funds to the principal debt or provides a security for the principal debt to pay the principal debt, and the principal debt has already been used for the repayment of the principal debt, it cannot be deemed that the guarantor has caused a risk of causing a new loss, separate from the former principal debt.

[4] The case holding that, in a situation where a merchant bank must pay a bill at a discount under the payment guarantee of a merchant bank because a merchant bank is unable to pay the bill, it cannot be deemed that the payment of the existing debt guaranteed by the merchant bank B and C is reduced, and it does not result in a new loss separate from the loss caused by the guarantee of king, since it does not lead to a decrease in its guarantee liability for the merchant bank to pay the bill at a realistic and specific level, in the circumstance that the merchant bank is required to pay the bill at a discount under the payment guarantee of the merchant bank.

[5] Even if multiple occupational breach of trust is committed, if the legal interest of the damage is a single and the attitude of the crime is the same, and if the multiple acts of breach of trust can be seen as a series of acts based on a single criminal intent, such multiple acts of breach of trust constitute a single crime.

[1] Articles 355(2) and 356 of the Criminal Act / [2] Article 356 of the Criminal Act / [3] Articles 355(2) and 356 of the Criminal Act / [4] Articles 355(2) and 356 of the Criminal Act / [5] Articles 37, 355(2), and 356 of the Criminal Act

[1] Supreme Court Decision 99Do1141 delivered on June 25, 199 (Gong1999Sang, 1556), Supreme Court Decision 99Do4923 delivered on March 14, 200 (Gong2000Sang, 101) Supreme Court Decision 2004Do5167 Delivered on November 10, 2006, Supreme Court Decision 2007Do373 Delivered on September 7, 2007 / [2] Supreme Court Decision 2004Do520 Delivered on June 24, 2004 (Gong204Ha, 1266), Supreme Court Decision 2004Do5167 Delivered on November 10, 206, Supreme Court Decision 2009Do4479 Delivered on May 24, 2009) / [309Do479 delivered on May 24, 2005]

Defendant 1 and two others

Defendants

Attorney Lee Im-soo et al.

Seoul High Court Decision 2006No262 delivered on December 27, 2006

The judgment below is reversed and the case is remanded to Seoul High Court.

The grounds of appeal are examined.

1. As to the assertion of misapprehension of legal principles as to the act of breach of trust and intent in breach of trust

A. The crime of breach of trust is established when a person administering another's business obtains pecuniary benefits or has a third party obtain such benefits through an act in violation of one's duty and thereby inflict loss on the principal. In this case, the term "act in violation of one's 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 law, terms of a contract, or the good faith principle, or by performing an act that is expected not to be naturally a matter of course in light of the content and nature of the business, etc., and the term "where a loss is inflicted on property" includes not only cases where a loss is actually incurred but also cases where a risk of actual loss in property arises. Thus, when a director, etc. of a company has already lost his/her ability to repay debts to another person and lent funds to him/her, such lending shall be deemed to have been done with the benefit of another person, and such act shall not be exempted from the crime of breach of trust with the sole reason that it constitutes an affiliated company of 197 billion won.

In addition, in order to establish the crime of occupational breach of trust, the perception of occupational breach of trust as a subjective element and the recognition that the person himself or a third party acquires the benefit and thereby causes damage to the principal, that is, there must be the intention of breach of trust. Such recognition is sufficient with dolusent perception. A third party who acquires the benefit is an affiliated company of the same third party. Even if the result of the act was conducted for the purpose of the rehabilitation of the entire affiliated company group, even if there are some aspects for the principal, the intent of the act for the principal's interest is only an incidental, and if it is proved that the intent of benefit or damage is the principal, the intention of breach of trust cannot be denied (see Supreme Court Decisions 2004Do520, Jun. 24, 2004; 2005Do4640, May 29, 2008, etc.).

B. The court below found Defendant 1, the chairperson of the △ Machinery Group, the non-indicted 1 and the non-indicted 2 and the non-indicted 3 corporation (hereinafter collectively referred to as the "support company"), as its affiliates, Defendant 2 and the representative director of the non-indicted 3 corporation, who was the chairperson of the △ Machinery Group, the non-indicted 1 and the non-indicted 2 and the representative director of the non-indicted 3 corporation, starting from the very poor financial structure from the time they were acquired in 1979, despite the financial support of the support company including restructuring and capital increase for several years, they continued to be in a state of capital erosion until 1997, and it was difficult to independently continue to continue to exist by improving the financial structure and improving the financial structure for several years, which led to the aggravation of the financial structure of the non-indicted 2 and the non-indicted 3 corporation's continued affiliates, which led to the aggravation of the financial structure, which led to the rapid aggravation of the financial structure of each of the non-indicted 1 and the non-indicted 3 corporation to the end of 197 years.

Examining the evidence adopted by the court below and the court of first instance as cited by the court below in light of the above legal principles and records, it is just and acceptable to find and determine the remainder of the court below's findings of fact and determination.

The court below did not err in the misapprehension of legal principles as to the act of occupational breach of trust and intentional act and the business judgment rule.

2. As to the assertion of misapprehension of legal principles as to the occurrence of property damage in the crime of occupational breach of trust

A. Part on the support act Nos. 13 13 and Nos. 2 2 of the crime sight table Nos. 2 in the attached Table 1 of the judgment below

(1) Where the principal has already guaranteed another person's obligation, and the principal has no sufficient means to pay his/her obligation, which is likely to cause the guarantor to pay his/her guaranteed obligation, and the guarantor has provided new funds to the principal debtor or collateral for the principal debtor to use the new funds for the repayment of the guaranteed obligation, then the principal cannot be deemed as causing a risk of causing a new loss, separate from the former guarantee obligation (see Supreme Court Decision 2004Do810, Jul. 9, 2004, etc.).

(2) However, with regard to the act of assistance in the No. 13 of the attached Table I in the judgment below, the court below rejected the Defendants’ specific financial support from the above 10 billion won to the non-indicted 1 corporation by purchasing bills at KRW 2 billion, and the non-indicted 1 corporation repaid the debt amount payable to the Daegu Bank on May 9, 1997 to the non-indicted 1 corporation, and the Korea General Finance Corporation (hereinafter “Korea General Finance Corporation”) guaranteed payment on the above bill as of May 9, 1997, and the non-indicted 2 corporation already guaranteed payment to the non-indicted 1 corporation within the limit of KRW 10 billion with respect to the payment under the bill transaction agreement with the non-indicted 1 corporation under the non-indicted 2's separate sheet II as stated in the judgment of the court below, each of the above financial support obligations of the non-indicted 35 billion to the non-indicted 1 corporation was not guaranteed to the non-indicted 1 corporation by the non-indicted 1 corporation to the extent of the above financial support obligation amount of KRW 16.

However, even if based on the above facts acknowledged by the court below, even if each of the above merchant banks actually performed its guarantee obligations against each of the above merchant banks, if the non-indicted 1 corporation could not pay the discounted bill under the payment guarantee of each of the above merchant banks, and if each of the above merchant banks actually and specifically paid the above payment of each of the above bills by subrogation, it can be said that the defendants provided the funds to the non-indicted 1 corporation, but it can be said that the defendants caused the reduction of their guarantee obligations by requiring the non-indicted 1 corporation to pay the debt already paid by the support company, and thus, it is difficult to view that the above financial support causes a risk of causing new damage, separate from the damage caused by the king's guarantee act.

Therefore, the lower court should further examine the Defendants’ assertion on this part in detail and consider whether the risk of causing a new damage to the supporting company was caused, and even if so, the lower court rejected the Defendants’ assertion and found the Defendants guilty of all of this part of the crime. In so doing, the lower court erred by misapprehending the legal doctrine on the damage of occupational breach of trust.

The Defendants’ ground of appeal pointing this out is with merit.

B. Part concerning support activities Nos. 1 2 and 2 of the crime sight table attached to the judgment of the court below

ex officio deemed.

According to the records, the court below reversed the first instance judgment and acquitted Defendant 1 on the ground that there was no proof of a crime as to this part of the facts charged (the fact that Defendant 1 and 2 conspired to assist Defendant 1 and 2 in increasing the guarantee limit of KRW 900 million on January 27, 1997) in determining a mistake of facts among the grounds for appeal by Defendant 1.

However, Article 364-2 of the Criminal Procedure Act provides that, in a case where the appellate court reverses the judgment of the court of appeal for the defendant, if the reason for reversal is common to the co-defendant who appealed for the defendant, the judgment of the court below shall also be reversed, and this purport is to promote the equitable trial among co-defendants (see Supreme Court Decision 2002Do6834, Feb. 26, 2003). Thus, in this case, the court below reversed ex officio the judgment of the court of first instance as to this part of the charges which are common reasons for reversal in the judgment of the court of first instance against the defendant 1 for the above reason, but the court below convicted him of this part of the facts charged against the defendant 2. The court below erred by misapprehending the legal principles, which affected the conclusion

C. Other support activities

The crime of occupational breach of trust is established when a person who administers another's business in violation of one's duty obtains pecuniary advantage or has a third party obtain such benefit and thereby causes loss to the principal. Here, "when a person inflicts pecuniary loss" includes not only cases where a real loss is inflicted but also cases where a risk of actual loss of property arises (see, e.g., Supreme Court Decisions 9Do1095, Jun. 22, 199; 2008Do484, May 8, 2008).

Examining the evidence of the judgment of the court below and the court of first instance cited by the court below in light of the aforementioned legal principles and records, the court below is justified in holding that all of the supporting acts constituted a breach of trust on the ground that: (a) each of the supporting acts of this case, which the court below found guilty, excluding the supporting acts of No. 13 and No. 2 in the annexed Table No. 2 in the annexed Table No. 1 in the judgment of the court below as seen earlier and the supporting act of Defendant No. 2 in the above crime No. 2 in the above crime List No. 1 in the judgment

The court below did not err in the misapprehension of legal principles as to the loss of property in breach of trust as alleged in the grounds of appeal.

3. As to the assertion of misapprehension of legal principles as to the number of crimes and the statute of limitations

A. Even if multiple occupational breach of trust is committed, if the legal interest of damage is a single and the attitude of crime is the same, and if such multiple occupational breach of trust can be seen as a series of acts based on a single criminal intent, such multiple occupational breach of trust constitutes a single crime (see, e.g., Supreme Court Decisions 2004Do810, Jul. 9, 2004; 2006Do6464, Jan. 12, 2007).

B. The court below rejected the defendants' assertion that, although the defendants' act of assistance in this case differs from the specific form of each act of assistance, all of them are similar forms of assistance with the purpose of preventing or delaying the dishonor of non-indicted 1 corporation by providing funds to non-indicted 1 corporation, and all of the profits from such act belong to non-indicted 1 corporation, and the victims are all the supporting company, and it is reasonable that each of the above assistance in this case is a series of continuous and repeated acts conducted for a certain period according to the single intent to prevent or delay the dishonor of non-indicted 1 corporation. Thus, each of the above assistance in this case is a comprehensive crime by each supporting company, and it is judged that each of the above assistance in this case constitutes a case where the statute of limitations expires due to the substantive concurrent crimes. In light of the above legal principles and records, the judgment of the court below is justified.

The court below did not err in the misapprehension of legal principles as to the number of crimes of breach of trust and the statute of limitations as alleged in the ground of appeal.

4. Scope of reversal

In this case, the court below found the defendant not guilty on the ground that only part of the support act of this case, which is a single crime, which is a single crime by each supporting company, did not prove the crime, and found the defendant guilty on all of the remaining parts, and the prosecutor did not appeal against the acquittal portion. However, the part which found the defendant not guilty on the grounds of the principle of no appeal, as well as the conviction portion, should be transferred to the court of final appeal (see Supreme Court Decision 2005Do6904, Jan. 27, 2006, etc.). However, as seen above, the court below erred in the misapprehension of the judgment which affected the conclusion of the judgment that found the defendant guilty on the part of the support act of this case, which is a single crime No. 13, No. 2, and the above crime No. 1, No. 2, and the judgment of the court below that found the defendant guilty on the part of the comprehensive crime No. 2, and there is no error in the misapprehension of all of the judgment of the court below as a comprehensive crime No. 3838, etc.

5. Conclusion

Therefore, the judgment of the court below is reversed, 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 Yang Chang-soo (Presiding Justice)