[1] Requirements for the establishment of a crime of breach of trust, the timing and timing of commencement and commencement of execution

[2] Standard for determining whether the act of a representative director of a stock company who issued a promissory note in violation of his/her duty such as abusing his/her power of representation constitutes the acceptance or attempted breach of trust

[3] In a case where the defendant, the representative director of the corporation Gap, was prosecuted for violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Misappropriation) on the ground that he obtained pecuniary benefits from Byung bank by issuing a promissory note in the name of Byung bank in order to guarantee the obligation of loans to Byung bank, which he had been separately in charge of the representative director, and incurred losses to Byung bank, the case holding that the court below erred by misapprehending the legal principles as to the property damage requirements and the timing of the breach of trust in the judgment below which found the defendant guilty on the premise that the issuance of

[1] Article 355(2) of the Criminal Act provides that the crime of breach of trust shall be established when a person who administers another's business obtains pecuniary advantage or causes a third party to obtain such profit by acting in violation of one's duty, thereby causing loss to the principal. Article 359 of the Criminal Act provides that an attempted crime shall be punished. As such, the Criminal Act provides that a person who administers another's business shall perform an act in violation of one's duty, and that an actor or a third party shall obtain pecuniary advantage from such an act in violation of one's duty, thereby causing loss to the principal. As such, the Criminal Act provides as an objective element of breach of trust, that a person who administers another's business shall perform an act in violation of one's duty, i.e., the act in violation of one's duty, and that a person who administers another's business has commenced the crime of breach of one's duty with awareness or intent to cause loss to

[2] [Majority Opinion] (A) In a criminal trial where a criminal case was prosecuted for a breach of trust, it is not easy to deliberate and decide on the timing of the acceptance of the crime of breach of trust. Although a person who administers another’s business formally has the appearance of performing a legal act for the principal, such an act is not likely to be invalidated on the grounds that it constitutes a juristic act contrary to social order (see Article 103 of the Civil Act) in a civil trial. This is because, when determining the establishment of a crime of breach of trust in a criminal trial, the evaluation of the civil law on such act has to sufficiently consider the impact on the property status of the victim from an economic point of view. Ultimately, in a criminal trial, the determination shall be based on the previous Supreme Court precedents, and shall be based on the content and nature of another’s business, the importance of the business, and the influence on the property status of the principal, etc. of each specific case.

(B) Even if the representative director of a corporation commits an act in violation of his/her duties, such as abusing his/her power of representation, and thus, if the other party knew or could have known the representative director's intention, the act of taking the obligation is null and void against the company. Therefore, if the other party knew or could have known of the abuse of power of representation, in principle, the act of taking the obligation is not effective against the company, and even from the economic point of view, it is difficult to evaluate that the other party has caused actual damage to the company or caused the risk of actual damage. Thus, the act of taking the obligation does not lead to the acceptance of the crime of breach of trust unless there are circumstances such as the actual performance of the obligation or the company has been liable for tort under the Civil Act. However, even in this case, the representative director is an attempted criminal

In addition, there are circumstances such as the other party’s failure to know of the abuse of power of representation, etc., if the obligation is effective against the company, the company’s obligation is incurred and the company bears the obligation to perform the obligation. As such, the occurrence of such obligation is the risk of actual loss or damage to property. Therefore, it should be deemed that the breach of trust has been completed even before the obligation is actually performed.

(C) In principle, an act of issuing a promissory note in violation of its duties, such as abusing the power of representation, should be deemed as constituting a crime of breach of trust. However, in the case of the issuance of a promissory note, the issuer under the Bills of Exchange and Promissory Notes Act cannot set up against the holder defenses arising from personal relations with the previous holder (Articles 17 and 77 of the Bills of Exchange and Promissory Notes Act). Thus, even if the issuance of a promissory note is null and void, if the promissory note is distributed to a third party, the company should be deemed as having committed a specific and practical breach of trust even before the obligation of the promissory note is actually performed. However, if the issuance of the promissory note is null and void, and if the promissory note is not distributed, it cannot be deemed that the company did not bear the obligation of the other party to the issuance of the promissory note, and thus, it should be punished as a crime of attempted breach of trust as well as a crime of attempted breach of trust.

[Concurring Opinion by Justice Park Poe-young, Justice Ko Young-han, Justice Kim Chang-suk, and Justice Kim Shin] (A) The crime of breach of trust ought to be deemed not to be a dangerous offense, but an offense of breach of trust. It is an interpretation that does not conform to the language and text of the Criminal Act. In other words, Article 355(2) of the Criminal Act provides that a crime of breach of trust is established in cases where a person obtains pecuniary advantage or has a third party obtain it by doing an act in violation of his/her duties and thereby causes loss to the principal. Here, “when losses are incurred” refers to “when losses are actually incurred” under the language and text. Nevertheless, the former precedents interpreted that “when losses are actually incurred” includes “when losses are actually incurred” and extend the scope of the establishment of the crime of breach of trust, thereby extending the scope of the establishment of the crime of breach of trust by interpreting that the meaning of the penal provisions is beyond the scope of the literal interpretation that equally handles, and thus is contrary to the principle of no punishment without law.

In addition, unlike other property crimes, the Criminal Act stipulates that property damage shall be caused in cases of breach of trust. This is understood as a legislative measure to emphasize that even if a person who administers another’s business violates his/her duty, if he/she does not actually cause property damage to the principal, he/she cannot be the subject of breach of trust. Therefore, it is unnecessary to interpret other property crimes, such as fraud or embezzlement, which do not specify property damage as a constituent element. In cases of breach of trust, it shall be interpreted that the requirement of property damage is satisfied only where an act in violation of his/her duty actually causes property damage to the principal, taking into account the specificity of the constituent elements and legislative intent.

(B) Even if a liability arises due to an act of compulsory performance or liability for tort under the Civil Act is borne, it shall be deemed as a risk of causing damage and not a realistic damage.

Since the crime of breach of trust is a crime that protects property rights, so long as the crime of breach of trust is deemed an infringement of property rights, it is the subject of the crime of breach of trust. However, in view of the infringement of property rights, it is natural to view that an obligation to perform an obligation is not a real infringement of property rights, but a risk of infringement of property rights. This is more true in light of the fact that an obligation has occurred and the obligation is not always performed. In other words, even if an obligation arising from an act of compulsory performance has occurred, the obligation may be actually performed and not performed. Nevertheless, construing that the obligation to perform the obligation is practically infringed upon the property rights, which are the protected legal interest of the crime of breach of trust, as it is merely the risk of infringement of real legal interests, and it does not accord with the system of the Criminal Act distinguishing the crime of breach of trust from the risk of infringement of legal interests.

(C) In a case where the representative director of a company committed an act by abusing his/her power of representation and thereby, such act becomes effective, and thus, the company is liable for tort under the Civil Act even if the act is null and void. However, the occurrence of an obligation arising from the act of compulsory performance or tort liability under the Civil Act is not a realistic damage, but rather a risk of causing damage. Therefore, the crime of breach of trust is established when the company actually performs the obligation arising from the act of compulsory performance or tort liability under the Civil Act. Therefore, even where the representative director of the company issued a promissory note in the company’s name by abusing his/her power of representation, regardless of whether the act of issuance is legally effective or whether the promissory note is distributed to a third party, the crime of breach of trust is established when the company actually

[3] In a case where the defendant, the representative director of the corporation Gap, was prosecuted for violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Misappropriation) by issuing a promissory note with a face value of KRW 2.90 million in the name of Byung bank in order to secure the obligation to lend loans to Byung bank that he had been in charge of the representative director, the court held that the court below erred by misapprehending the legal principles as to the property damage requirements and the timing of the crime of breach of trust in the judgment below which found the defendant guilty on the premise that the act of issuing a promissory note without deliberation was committed on the premise that the act of issuing the promissory note has committed the violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes, on the ground that the defendant abused the power of representation and issued the promissory note, and the other bank Byung was aware or could have known of the fact at the time when the promissory note was issued, and the act of issuing the promissory note was not effective against the corporation Gap.

[1] Articles 25, 355(2), and 359 of the Criminal Act / [2] Article 12(1) of the Constitution of the Republic of Korea; Articles 1(1), 25, 35(2), 356, and 359 of the Criminal Act; Article 3 of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes; Article 103 of the Civil Act; Articles 17 and 77 of the Bills of Exchange and Promissory Notes Act / [3] Articles 355(2), 356, and 359 of the Criminal Act; Article 3(1)2 of the former Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Amended by Act No. 11304, Feb. 10, 2012)

[2] Supreme Court Decision 97Da18059 Decided August 29, 1997 (Gong1997Ha, 2870) Supreme Court Decision 2003Da34045 Decided March 26, 2004 (Gong2004Sang, 712) Supreme Court Decision 2012Do1082 Decided December 27, 2012 (Gong2013Sang, 285) (Change), Supreme Court Decision 2011Do10302 Decided February 14, 2013 (Gong2013Sang, 519) (Amended by Act No. 11387, Feb. 14, 2013)

Defendant

Defendant

Attorney Seo-won

Seoul High Court Decision 2013No3282 decided January 10, 2014

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

The grounds of appeal are examined.

1. A. Article 355(2) of the Criminal Act provides that a person who administers another’s business obtains pecuniary advantage or causes a third party to do so by doing an act in violation of his/her duty, thereby causing loss to the principal, and Article 359 of the Criminal Act provides that a person who administers another’s business shall be punished. As such, the Criminal Act provides that a person who administers another’s business shall commit an act in violation of his/her duty, and that an actor or a third party shall obtain pecuniary advantage and thereby inflict loss on the principal. As such, the Criminal Act provides as an objective element of a crime of breach of trust in that a person who administers another’s business shall obtain pecuniary advantage from the principal. As such, the person who administers another’s business has commenced an act in violation of his/her duty with awareness or intent to inflict loss on the principal when he/she or the third party commences an act in violation of his/her duty with the awareness that he/she or it causes loss to

In the past, the Supreme Court has consistently interpreted that the crime of breach of trust means a decrease in property value, which includes not only the case of causing actual damage but also the case of causing the risk of actual damage (see, e.g., Supreme Court Decision 72Do1366, Nov. 13, 197; Supreme Court Decision 79Do2637, Sept. 9, 198; Supreme Court Decision 87Do546, Jul. 21, 198; 90Do1702, Oct. 16, 190; 190Do1701, May 30, 1997; 200Do1497, Oct. 16, 197; 190Do1702, Oct. 16, 1990; 195Do531, May 30, 1997). In addition, the Supreme Court has determined that property damage was not likely to have been actually caused by a legal breach of trust from an economic standpoint.

Notwithstanding such Supreme Court precedents, it is not easy to deliberate and determine the timing of the acceptance of the crime of breach of trust in the criminal case where the criminal trial is prosecuted for the crime of breach of trust. Although a person who administers another person's business has a formal appearance of doing a juristic act for the principal, such an act constitutes an act of breach of duty in a civil trial, it is unlikely to be judged null and void on the grounds that such act constitutes an act of breach of duty in a civil trial (see Article 103 of the Civil Act). This is because, when determining the establishment of a crime of breach of trust in a criminal trial, the evaluation of the civil law on such act has to sufficiently consider the impact on the property status of the victim from an economic point of view. Ultimately, in a criminal trial, the determination of the occurrence of damage which is an objective element of the crime of breach of trust or the infringement of the victim's property interest, it shall be based on the above Supreme Court precedents, but it shall be made carefully by taking into account

B. (1) Even if the representative director of a corporation commits an act in violation of his duties, such as abuse of representative authority, and thus, it is valid as an act of the company. However, if the other party knew or could have known the intention of the representative director, it shall be null and void against the company (see, e.g., Supreme Court Decisions 97Da18059, Aug. 29, 1997; 2003Da34045, Mar. 26, 2004). Therefore, if the other party knew or could have known of the abuse of representative authority, the act of imposing the obligation is not, in principle, effective against the company, and it is difficult to evaluate that the actual damage was caused to the company or the risk of actual damage was caused, and it does not lead to the acceptance of the crime of breach of trust unless there are circumstances such as the actual performance of the obligation due to the act of imposing the obligation, or the company was liable for tort under the Civil Act.

In addition, there are circumstances such as the other party’s failure to know of the abuse of power of representation, etc., if the obligation is effective against the company, the company’s obligation is incurred and the company bears the obligation to perform the obligation. As such, the occurrence of such obligation is the risk of actual loss or damage to property. Therefore, it should be deemed that the breach of trust has been completed even before the obligation is actually performed.

(2) As a matter of principle, an act of issuing a promissory note in violation of its duties, such as abusing the power of representation, shall be deemed as constituting a crime of breach of trust. However, in the case of the issuance of a promissory note, the issuer under the Bills of Exchange and Promissory Notes Act cannot set up against the holder defenses arising from personal relations with the previous holder (Articles 17 and 77 of the Bills of Exchange and Promissory Notes Act). Thus, even if the issuance of a promissory note is null and void, if the promissory note is distributed to a third party, the company should be deemed as having committed a specific and practical offense of breach of trust even before the obligation of the promissory note is actually performed. However, if the issuance of the promissory note is null and void, and if the promissory note is not distributed, it cannot be deemed that the company did not bear the obligation of the other party to the issuance of the promissory note, and thus, it should be punished as a crime of attempted breach of trust as well as a crime of attempted breach of trust.

In contrast, Supreme Court Decisions 2012Do10822 Decided December 27, 2012, and Supreme Court Decision 2011Do10302 Decided February 14, 2013, etc., which purport that even if a promissory note issued in the name of the representative director is invalid, it shall be deemed that the issuance of a promissory note in the name of the representative director would result in the risk of actual damage to property, barring any special circumstance that the said promissory note is not distributed to a third party, shall be amended within the scope of the foregoing.

2. The summary of the facts charged of this case is that the defendant, as the representative director of the victimized company, issued a promissory note with a face value of KRW 2.99 billion in the name of the victimized company to secure the obligation of loans to the ○○ Mutual Savings Bank of Korea in order to secure the obligation of loans to the ○○ Mutual Savings Bank of Korea, which he had been separately responsible for the representative director of the victimized company, thereby obtaining pecuniary benefits equivalent to KRW 2.99 billion in the name of the victimized company and causing damage equivalent to the same amount to the victimized company.

The lower court upheld the first instance judgment convicting the Defendant of the instant facts charged on the ground that the Defendant’s act of issuing the Promissory Notes constitutes abuse of power of representation and thus invalid against the victimized company, on the ground that there was no special circumstance to deem that the Promissory Notes were not distributed at the time of the issuance of the Promissory Notes, and there was a risk of property damage to the victimized company at the time of the issuance

However, in light of the legal principles as seen earlier, if the Defendant abused his power of representation and issued the Promissory Notes in this case when ○○ Mutual Savings Bank, which is the other party, knew or could have known such fact, and the issuance of the Promissory Notes is not effective against the victimized company, it cannot be deemed that the damage company actually paid the amount of a promissory note or bears civil liability for damages, or the promissory note was actually distributed to a third party, resulting in the risk of actual damage or property damage to the victimized company due to the Defendant’s act of issuing the Promissory Notes. Nevertheless, the lower court, without its review, found the Defendant guilty by applying the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Misappropriation of Trust) to the facts charged on the premise that the act of issuing the Promissorysory Notes in this case was committed against the crime of breach of trust under the premise that the act of issuing the Promissory Notes in this case was committed against the Act on the Aggravated Punishment, etc. of Specific

3. 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, except for a separate opinion by Justice Park Poe-young, Justice Ko Young-han, Justice Kim Chang-suk, and Justice Kim Shin, the concurrence with the Majority by Justice Jo Hee-de and Justice Kim Jae-hyung, and a concurrence with the Majority by Justice Park Sang-ok, and a concurrence with

4. The separate opinion by Justice Park Poe-young, Justice Ko Young-han, Justice Kim Chang-suk and Justice Kim Shin is as follows.

A. The Majority Opinion held that, on the premise that the crime of breach of trust is a dangerous crime, where the issuance of a promissory note in the name of the representative director becomes null and void due to abuse of representative authority, etc., it cannot be deemed that the company’s tort liability is committed under the Civil Act or the risk of actual damage or property damage to the company, barring any special circumstance such as actual circulation of such promissory note to a third party, and that the judgment below, which held that the crime of breach of trust is established solely on the ground that the instant promissory note is not denied

The separate opinion also agrees with the majority opinion in that the judgment of the court below that convicted the Defendant of the facts charged in this case should be reversed on the premise that the period of the crime of breach of trust is established. However, the crime of breach of trust should be deemed not to be a dangerous crime, but a crime of breach of trust, and even if a liability is incurred due to the act of imposing an obligation or liability for tort under the Civil Act, it shall be deemed to be not a real damage but a risk of causing damage. Therefore,

B. The crime of breach of trust is not a dangerous crime, but an infringement crime.

(1) The Supreme Court consistently held that the crime of breach of trust is a crime of danger established when the exercise of the right to property is likely to be impossible or when there is a risk of the occurrence of loss (see, e.g., Supreme Court Decisions 88Do1247, Apr. 11, 1989; 99Do334, Apr. 11, 2000); and that the crime of breach of trust referred to in the crime of breach of trust includes not only a case where a loss is inflicted on property but also a case where a risk of actual loss of property arises (see, e.g., Supreme Court Decisions 2007Do541, Jul. 23, 2009; 201Do16763, Feb. 3, 2014).

However, it is not consistent with the language and text of the Criminal Act to understand the crime of breach of trust as a dangerous crime. In other words, Article 355(2) of the Criminal Act provides that the crime of breach of trust shall be established when acquiring property benefits or having a third party acquire them through an act in violation of one’s duty and thereby causing damage to the principal. Here, “when causing damage” refers to “when actually causing damage” under the language and text thereof. Nevertheless, the previous precedents include cases where “when causing damage” in the crime of breach of trust includes cases where the risk of actual damage in addition to actual damage is caused. Thus, the scope of the establishment of the crime of breach of trust is expanded. The interpretation that equally treats two cases is beyond the scope of the interpretation of the language and text, as well as where the meaning of the penal provisions is expanded in the direction unfavorable to the defendant, and thus are contrary to the principle of no crime of no punishment without law.

(2) In addition, the Criminal Act stipulates that property damage shall be caused in the case of a crime of breach of trust, unlike other property crimes. This is understood as a legislative measure to emphasize that even if a person who administers another’s business violates his/her duty, even if he/she does not actually cause property damage to the principal, the act cannot be the subject of the crime of breach of trust. Therefore, there is no need to share an interpretation on property profit or damage of other property crimes, such as fraud or embezzlement, which are not specified as constituent elements. In the case of a crime of breach of trust, it shall be interpreted that the requirement of property damage is satisfied only where an act in violation of his/her duty causes property damage to the principal

(3) Even if the Majority Opinion considers that the risk of actual occurrence of a crime of breach of trust is merely the front stage of a real property damage, it is reasonable to interpret the crime of breach of trust as a crime of infringement. The Supreme Court has held that the loss in the crime of breach of trust includes not only a real loss but also a case where the risk of a real property damage occurs. However, it does not necessarily mean that a strict judgment has been made on the case where a real loss occurred in a specific case and a risk of a real property damage occurs. Even if a defendant committed an act of breach of duty involving risk, where a principal’s profit accrues, or where the result of the act of breach of trust is not likely to accrue to the principal, it cannot be deemed that there was an act of breach of duty of breach of trust, and there is no risk of actual occurrence. In other words, the risk of actual occurrence means that the defendant committed an act of breach of duty that may cause a real property damage to the principal and the possibility of the occurrence of the result has been realized. It is not only an independent risk that actually causes a loss to the principal in the process of breach of duty.

(4) In light of specific circumstances, such as the content and nature of the business, etc. of the crime of breach of trust, the previous precedents have been deemed to include all acts of not performing an act that is naturally expected under the provisions of law, the content of a contract, or the good faith principle, or neglecting a fiduciary relationship with the principal by doing an act that is anticipated not to perform as a matter of course (see, e.g., Supreme Court Decision 2005Do4640, May 29, 2008). This is based on the position of the so-called theory on the essence of the crime of breach of trust. In order to supplement this, the scope of a fiduciary relationship established for the establishment of a new crime of breach of trust is at an indefinite risk of expanding the scope of a fiduciary relationship, and to interpret the elements of a “person who administers another’s business,” the lack of a fiduciary relationship remains unclear, and ultimately, it is not clear whether a new fiduciary relationship constitutes the crime of breach of trust, and thus, it is necessary to interpret that the act constitutes a crime of breach of trust can be construed to the extent of trust.

(5) Of course, the Supreme Court has endeavored to limit the scope of risk by limiting the risk of actual harm that meets the requirements for the loss of the crime of breach of trust to specific and realistic risks (see, e.g., Supreme Court Decision 2015Do6745, Sept. 10, 2015). However, since specific and real risks that meet the requirements for the loss of the crime of breach of trust are not clear, it is difficult to deny that the act of violation of duties is being punished as a term of the crime of breach of trust in most cases, only if there is a risk of reducing one’s property in practice, since the specific and real risks that meet the requirements for the loss of the crime of breach of trust are not clear. This means that the efforts of the Supreme Court to prevent excessive expansion of the risk of loss by separating the risk of loss from the degree is not reasonable, and that the provisions of the Criminal Act on the crime of breach of trust have not been effective. As a result, it is not desirable to properly cope with the roles of the people as an action norm.

(6) The Korean Criminal Act has a provision punishing an attempted crime of a crime of a crime of a crime of a crime of a crime of a crime of a crime of a crime of a crime of a crime of a crime of a crime of a crime of a crime of a crime of a crime of a crime of a crime of a crime of a crime of a crime of a crime of a crime of a crime of a crime of a crime of a crime of a crime of a crime of a crime of a crime of a crime of a crime of a crime of a crime of a crime of a crime of a crime of a crime of a crime of a crime of a crime of a crime of a crime of a crime of a crime is legislative decision that punish the attempted crime of a crime of a crime of a crime of a crime of a crime of a crime of a crime of a crime of a crime of a crime of a crime of a crime of a crime of a crime of a crime of a crime of a crime of a crime of a crime

(7) If a crime of breach of trust is constituted as a crime of breach of trust, if the actual loss is not actual loss, but the risk of actual loss is caused by the act of breach of trust, it is pointed out that there is a problem that Article 3 of the Specific Economic Crimes Act cannot be applied. From the standpoint that the crime of breach of trust should be viewed as a crime of breach of trust, such circumstance seems to be one of the grounds that the crime of breach of trust cannot be deemed as a crime of breach of trust. However, the crime of violation of the Specific Economic Crimes Act (violation of Trust) is the value of property gains acquired by the act of breach of trust, i.e., the amount of profit, which is a mere quantitative standard, increases the statutory punishment by calculating the amount of profit, including the risk of actual loss, rather than the punishment of the act of breach of trust. Therefore, if the amount of profit is calculated including the risk of actual loss, it is more reasonable to apply the principle of balance of punishment or the principle of responsibility to the specific crime of breach of trust, and in particular, it is not reasonable to punish the other specific crime of breach of trust.

C. Even if a liability arises due to an act of compulsory performance or the liability for tort under the Civil Act is borne, it shall be deemed as a risk of causing damage and not a realistic damage.

(1) The previous precedents have considered that the determination on the existence of property damage in breach of trust ought to be based on the legal judgment in relation to the property status of the principal and ought to be understood from an economic point of view (see, e.g., Supreme Court Decisions 2012Do15890, Apr. 11, 2013; 201Do16763, Feb. 3, 2014). Here, it seems clear that the “economic perspective” in this context may have a variety of opinions about the specific meaning, but at least it should not be bound from the legal point of view.

Meanwhile, in the crime of breach of trust, the term “where property damage is done” refers to the constituent consequence of the crime of breach of trust, and it is necessary to grasp the relationship with the protected legal interest of the crime of breach of trust. The protected legal interest of the crime of breach of trust is property right, and the crime of breach of trust is deemed an infringement of property right. Therefore, the term “where property damage is done” in the crime of breach of trust refers

(2) If the representative director violated his/her duty and committed an act of bearing obligations, and the act is legally effective, the company is obligated to perform his/her obligations as a result of occurrence of the obligation. However, in such a case, the company is in the position of bearing the legal obligation to perform the obligation, but does not cause a real change in the company’s property. Nevertheless, deeming that the obligation to perform the obligation to perform the obligation to perform as a matter of law is considered as a real loss. In other words, it should not be understood from an economic point of view as having been understood from a legal and accounting point of view

(3) As mentioned earlier, since the crime of breach of trust is a crime of property right protecting the legal interest of the property right, so long as the crime of breach of trust is deemed an infringement of the legal interest of the property right, the crime of breach of trust is established. However, from the perspective of infringement of the property right, it is natural to view that the liability arising from the infringement of the legal interest of the property right is not a real infringement of the property right, but a risk of infringement of the property right is not always performed. It is more true in light of the fact that the obligation is not always performed. In other words, even if the liability arising from the act of compulsory performance has occurred, the obligation can be actually performed and may not be performed. Nevertheless, the interpretation that the property right, which is the legal interest of the crime of breach of trust, has been practically infringed on the legal interest of the legal interest of the crime of breach of trust, is merely an infringement of the legal interest of the legal interest of the crime of breach of trust. Furthermore, it is questionable whether it conforms with the specific form of joint and several surety obligation under the Specific Economic Crimes Act.

D. As seen earlier, the crime of breach of trust should be deemed as a crime of infringement, and it is reasonable to regard the occurrence of an obligation arising from the act of imposing an obligation or the liability for tort under the Civil Act as a risk of occurrence of damage rather than a real damage. We examine the instant case on

(1) In a case where the representative director of a company committed an act by abusing his/her power of representation and thereby, such act becomes effective, and thus, the company is liable for tort under the Civil Act even if the act is null and void. However, the occurrence of a debt arising from an act of compulsory performance or tort liability under the Civil Act is not a real damage, but a risk of causing damage. Therefore, the crime of breach of trust is effective when the company actually performs the liability due to the act of compulsory performance or tort liability under the Civil Act. Therefore, even where the representative director of the company issued a promissory note under the company’s name by abusing his/her power of representation, regardless of whether the act of issuance is legally effective or whether the promissory note is distributed to a third party, the crime of breach of trust shall be deemed established when the company actually performs the obligation

(2) According to the records, although the Defendant abused the power of representation and issued the Promissory Notes in this case, it is difficult to conclude that the damage company actually performed the obligation of the Promissory Notes or the liability for tort under the Civil Act. Nevertheless, the lower court convicted the Defendant of the facts charged in this case by applying the crime of violating the Specific Economic Crimes Act (Misappropriation) on the premise that the elements for property damage of the crime of breach of trust are satisfied solely on the ground that the possibility of circulation of the Promissory Notes in this case is not denied to a third party. In so doing, the lower court erred by misapprehending the legal doctrine on the degree of protection of the crime of breach of trust, the requirement for property damage, the timing of acceptance, etc.,

As above, I express my opinion with regard to the conclusion that the judgment of the court below should be reversed, but with different reasons, I express my concurring opinion.

5. Concurrence with the Majority by Justice Jo Hee-de and Justice Kim Jae-hyung

A. Under the premise that the crime of breach of trust is a crime of breach of trust, the Concurring Opinion argues that even if a company’s liability arises due to an act of breach of the representative director’s duty or the company bears tort liability under the Civil Act, it does not reach the conclusion of the crime of breach of trust, since it causes a risk of damage, not

From the standpoint of the majority opinion, I would like to add the opinion on it.

B. While previous precedents suggest that the damage referred to in the crime of breach of trust includes not only a real damage but also a case where the risk of actual damage to property has been caused, the risk of actual damage is insufficient only to cause a simple damage, and from an economic point of view, it means a case where a specific and realistic risk has been caused to the same extent as the damage to the principal was incurred (see, e.g., Supreme Court Decisions 2012Do10139, Nov. 29, 2012; 2015Do6745, Sept. 10, 2015). In other words, the previous precedents do not always mean that the damage requirement of the crime of breach of trust is satisfied, and therefore, it can be deemed that the damage requirement of the crime of breach of trust is not satisfied, and therefore, only where the risk of actual damage has been caused to the extent that the property of the principal is identical to that of the actual damage.

However, it cannot be readily concluded that the risk of actual harm as referred to in the previous precedents refers to the risk as referred to in the crime of danger. In other words, in a case where a specific and realistic risk has occurred to the extent that it is identical to a real infringement on property rights, it may be evaluated that there is a real infringement on the legal interest protected by the law in itself. In the meantime, the precedents do not clearly distinguish the actual damage and the risk of actual damage with respect to the property damage requirement of breach of trust. Accordingly, in a case where a specific and real risk has occurred to the property of the principal due to the occurrence of the obligation of the principal due to the act in violation of his/her duty, it is the number of breach of trust, and there is no logical ground to regard the point of time differently depending on whether the crime of breach of trust is regarded as

C. Under Article 355(1) of the Criminal Act, the crime of embezzlement is established when a person who keeps another’s property commits embezzlement or refuses to return the property. Article 355(2) of the same Act provides that a person who administers another’s business obtains pecuniary advantage or causes a third party to obtain such benefit by acting in violation of his/her duty and thereby inflict loss on the principal. The crime of embezzlement and the crime of breach of trust under the Criminal Act are identical in nature in that the crime is committed against another. However, the crime of embezzlement and the crime of breach of trust are different in that the property is subject to the property and the crime of breach of trust are subject to the property benefit. As such, the Criminal Act limits the object of the crime of breach of trust to property benefit, and determines the property loss of the principal, which is equivalent to the acquisition of the property benefit of the actor or the third party, the meaning

Since property refers to a corporeal substance that can be physically managed, the right does not constitute property even if it pertains to property. However, it does not necessarily mean an increase in the value of all property, and it does not necessarily mean an increase in the value of property. It is reasonable to view that the right to property falls under a property interest as referred to in the crime of breach of trust, and thus, the burden of property obligations arising from the acquisition of such right may also constitute property damage caused to the other party. In addition, such interpretation is consistent with the system of the Criminal Act that provides for the crime of breach of trust as pure gain. Nevertheless, it is logically unreasonable to deem that the property damage as referred to in Article 355(2) of the Criminal Act is not likely to occur until the obligation is actually performed in light

D. The crime of breach of trust is an offense whose legal interest is to protect property rights, and the determination of whether or not property damage exists ought to be made from an economic point of view, not from a legal point of view, in relation to the property condition of the principal’s entire property condition. In addition, the phrase “the property damage was inflicted” which is a constituent element of the crime of breach of trust refers to a case where the property status of the principal causes damage to the principal, i.e., the reduced total property value (see, e., Supreme Court Decisions 2004Do7053, Apr. 15, 2005; 2009Do14268, Apr. 28, 2011).

Generally, the property is divided into positive and negative property, and the obligation is divided into positive and negative property. The occurrence of an obligation means a decrease in the value of the property as a whole from an economic point of view as an increase in the negative property. The existence of property damage in breach of trust is not an individual property change, but an increase in the value of the property as a whole. As such, it is natural to regard the occurrence of an obligation as a loss under Article 355(2) of the Criminal Act. However, precedents have limited to cases where a specific and practical risk arises in order to reasonably limit the scope of punishment for breach of trust. Therefore, in cases where a company’s obligation was incurred due to an act violating the representative director’s duty, it shall be deemed that there is a specific and practical risk even before the company actually performed the obligation, and that property damage was caused.

In reality, the occurrence of a debt and the increase of a small property resulting therefrom are evaluated as a decrease in the value of property or property. In the case of a juristic person, even if the debt exceeds its assets, adjudication of bankruptcy may be made (Article 306(1) of the Debtor Rehabilitation and Bankruptcy Act), and the occurrence of a debt may bring about disadvantages to a juristic person regardless of the actual performance of the debt. As such, setting the debt excess as a cause of bankruptcy may be deemed as reflecting the perception of the person conducting economic activities. In addition, the increase of a small property does not merely affect the company’s credit or financial soundness, but also directly affect the company’s existence. The occurrence of a debt and the increase of a small property resulting therefrom act as a socially and economically specific and real disadvantage, and the interpretation of the crime of breach of trust under the Criminal Act does not necessarily mean that it does not in itself cause property damage.

E. The Concurring Opinion argues that even if a debt arises, the occurrence of the debt does not always have to be performed, and thus the occurrence of the debt alone is difficult to deem that the property right has been practically infringed. However, in the event of a legally effective debt, whether the debt is damage to property should be determined depending on whether the performance of the debt is legally enforced from an economic point of view on the premise that the debt is normally performed within the legal order. Therefore, it is inappropriate to deem that the occurrence of the debt does not constitute property damage after presenting exceptional cases where the debt is not performed according to the debtor’s insolvency or intent

F. As the separate opinion pointed out in the case of the Specific Economic Crimes Act, where statutory punishment is aggravated depending on the value of the pecuniary gain acquired by the act of breach of trust, there may be problems in applying aggravated statutory punishment. However, such problems arise not only in breach of trust but also in cases where the Specific Economic Crimes Act applies due to fraud or embezzlement. Therefore, it is a matter to be resolved by strictly interpreting the "amount of profit" under Article 3 of the Specific Economic Crimes Act. In addition, if it is interpreted that the requirements for property loss of the crime of breach of trust are satisfied only when a real property transfer is accompanied, such as the separate opinion in general breach of trust, it is difficult to punish the loss of the crime of breach of trust, and many cases recognized as the expiration of the current crime of breach of trust can be punished as a crime of attempted breach of trust, and therefore, it is difficult to point out that the normative power of the crime of breach

As above, I express my concurrence with the Majority Opinion.

6. Concurrence with the Majority by Justice Park Sang-ok as follows.

A. The Concurring Opinion argues that, unlike other property crimes under Article 355(2) of the Criminal Act, the crime of breach of trust is referred to as “when damages are inflicted,” and that, unlike the German Criminal Act, a penal provision for attempted crimes is separately provided, the crime of breach of trust shall be deemed to mean the crime of breach of trust, and the damage shall also be deemed to mean only the “real damage.” On the contrary, if the “risk of actual damage” is included in the front stage of the actual damage, the scope of punishment for breach of trust is too wide, and is contrary to the principle of no punishment and the principle of liability, and the above provision of the law is not desirable to properly fulfill the role of the norm of conduct against the people.

B. However, the Concurring Opinion’s assertion is difficult to accept for the following reasons.

(1) The Concurring Opinion refers to the interpretation of the German criminal law, but in the interpretation of the Japanese criminal law, which has a penal provision for attempted breach of trust as in the Korean criminal law, the Supreme Court of Japan takes the position that the crime of breach of trust is a dangerous crime. As such, the reason why many countries give equal value to actual damage and actual damage, despite the structural difference in the provisions of the criminal law, is very natural to recognize both equally as long as they grasp the damage from an economic perspective.

A crime of breach of trust is a property crime that assumes the premise of any loss and interest arising from property transactions, etc. However, there exists a case where a request for consideration is made by giving money in advance to a property transaction and performance of a contract offer and payment. On the contrary hand, there is a case where the payment is made at the same time and the payment is made at the same time. Although the transactional relationship is legally null and void, it is intended to perform payment according to external appearance without knowing it. Although the transaction relationship is invalid, it is possible to seek appropriate loan even though the transaction relationship is valid, and refuse to implement the transaction. Since the profit and loss in property transaction are understood in various and diverse circumstances, it is not easy to give and receive money as a loss and interest. Ultimately, it is difficult to conclude that the exchange of money is not a loss and interest. In short, the interpretation of the Criminal Act based on the principle of no punishment without law, and from this perspective, the Supreme Court has determined that the actual risk of actual loss and loss is not sufficient to the extent that it causes 105 years or more (see, e.g., Supreme Court Decision 2015 years or more).

The separate opinion does not deny the understanding of the loss of the crime of breach of trust from the economic point of view. Ultimately, as long as the loss of the crime of breach of trust is understood from the economic point of view of the transaction system, granting equivalent value to the risk of actual loss and actual loss is based on the combined interpretation of the criminal law, and this is the concept that is easily accepted in the general transaction system. Therefore, deeming the crime of breach of trust as a crime of breach of trust or a risk crime is inconsistent with the elements and legal interests and interests of the crime of breach

(2) The Concurring Opinion argues that even if the principal grounds of the Majority Opinion deeming that the crime of breach of trust is a dangerous crime, not a crime of breach of trust, if only the risk of actual occurrence occurs, it is possible to punish the amount of profit by applying Article 3 of the Specific Economic Crimes Act according to the amount of profit. However, the Specific Economic Crimes Act was enacted on December 31, 1983, and the Supreme Court’s ruling that the crime of breach of trust is a dangerous crime is much more transfer than that, therefore, it is difficult to accept the above argument by the Concurring Opinion.

In other words, in the Supreme Court Decision 72Do1366 Decided November 13, 1973, the Supreme Court held that "when a person inflicts loss on the person in question" means the reduction of property value, which includes not only the case where a loss of property is caused but also the case where a loss is caused by an actual damage." In the Supreme Court Decision 75Do123 Decided April 22, 1975, the Supreme Court explicitly decided that the crime of breach of trust is not a crime of violation, but a crime of danger is not a crime of violation, and such decision is now leading to the present regardless of the enactment of the Specific Economic Crimes Act.

Therefore, it is not a legal or logical relationship between the application of Article 3 of the Specific Economic Crimes Act to regard the crime of breach of trust as a dangerous crime and the application of it.

(3) If only the actual damage, like the Concurring Opinion, is deemed as damages, the representative director of the company, who is the breach of trust, who is the criminal act of abusing the power of representation, shall delay or refuse the performance of the obligation until criminal liability against himself/herself is finalized. If the representative director of the company, who is a major shareholder of the company, is likely to be exempted from liability by means of delay of performance, etc. through control over the company, etc. If the representative director of the company is a major shareholder of the company, he/she can be established differently according to the major shareholder’s intent. As can be seen, if there is a direct causal relationship with the breach of trust act, it is questionable whether the above result resulting from the breach of trust conforms to the principle of liability, and if there is a concern that the liability may be conflict with the principle of equity.

(4) According to the Concurring Opinion, when a person in breach of trust is expected to delay the performance of an obligation in order to avoid liability, when the other party to a transaction seeks to realize an obligation directly, it may be problematic when the other party to a transaction seeks to enforce the obligation. As a requirement for the acquisition of profit and the occurrence of loss, the crime of breach of trust may lead to the acceptance of a crime of breach of trust. For instance, in a case where a compulsory auction procedure is in progress for real estate owned by the company based on a money loan loan notarial deed, if the proceeds are paid in full and the company loses its ownership, whether the other party would be the time when the other party receives dividends at the time of receiving dividends, and if the other party receives dividends after one year from the time without immediately receiving dividends due to personal reasons, the point of time of time is unclear. Accordingly, in accordance with the Concurring Opinion, the penal provisions in the crime of breach of trust cannot properly cope with the role of the norm of conduct toward the people.

C. The Majority Opinion’s evaluation of the risk of actual damage as equal to actual damage does not intend to expand the scope of criminal punishment, but normative interpretation based on the understanding of the damage from an economic point of view accords with the principle of no punishment or the principle of no punishment without the law or the principle of no punishment. Rather, if only the performance of obligation is considered as damage, such as the Concurring Opinion, is likely to cause the instability of criminal justice or the

As above, I express my concurrence with the Majority Opinion.

7. Concurring Opinion by Justice Kim Chang-suk and Justice Kim Shin is as follows.

The Majority Opinion recognizes the commencement of a performance where a performance of an obligation is null and void, but it does not lead to the acceptance of a crime of breach of trust unless there exist circumstances such as the performance of an obligation was actually performed or the liability for tort under the Civil Act. On the other hand, in the event the performance of an obligation is valid, the occurrence of an obligation is the risk of actual loss or damage to property. As such, the occurrence of an obligation itself is deemed as the risk of actual loss or damage to property, and thus, it is deemed that the breach of trust has been completed even before the performance of the obligation is actually performed. Such an interpretation of law

A. In the event that an act of breach of trust is valid, deeming that the act of breach of trust becomes effective at the same time with the commencement of the act of breach of trust is not consistent with the system of the Criminal Act which classify the elements of breach of trust as the requirements and results of the act and punishs the attempted

In addition, considering that the attempted crime and the attempted crime are a series of processes in which one act is realized as a crime and whether it is a series of processes, the recognition or acceptance of the commencement of the crime shall be determined according to the same standard, and it is not correct to determine according to different standards.

The Majority Opinion decides whether to commence an action or not from the perspective of the Criminal Act, regardless of the civil point of view, i.e., validity and invalidation of an act of bearing an obligation. On the other hand, if an act of bearing an obligation is valid, it shall be determined by the number of times without considering whether the act of bearing an obligation actually incurred the loss, as long as the act of incurring an obligation has occurred under the civil law, and if it is invalid, it shall be determined in accordance with the perspective of the Criminal Act, which means that the act of incurring an obligation is deemed to have actually incurred the loss. This is deemed to be based on

However, it is not reasonable to determine whether to impose liability on the basis of such ambiguous criteria. Ultimately, even if the act of undertaking an obligation is valid and not performed, there are many cases where the obligation is performed even though the act of undertaking an obligation is not performed. Even though the act of undertaking an obligation is valid, damage may not be realized by the principal debtor’s performance of the obligation, and even if a promissory note was issued as a security for a third party, the damage may not be realized by the third party’s performance of the underlying obligation. The Majority Opinion points out that the property damage of breach of trust should be understood not from a legal point of view, but from an economic point of view. It is questionable whether it conforms to the conventional precedents that have been consistently determined that the property damage of breach of trust should be understood from an economic point

B. In a case where a person who administers another’s business violates one’s duty and performs an act of bearing obligations, it is not clear whether the act is valid or invalid. In fact, there are more cases where the legal effect can not be easily predicted until a legal evaluation becomes final and conclusive through civil trials, etc.

According to the majority opinion, unless a civil judgment on the validity of the act of compulsory performance has become final and conclusive, a criminal court that determines whether the act of compulsory performance is established shall first determine the validity of the act of compulsory performance, and then determine whether the act of compulsory performance is established or not. In this case, it is doubtful whether a criminal defendant, who is under a criminal trial, can exercise sufficient right of defense. The final evaluation of the legal validity of the act of compulsory performance is bound to be made through the final and conclusive judgment of civil court, which is under the control of the party's right of disposition and the defense principle, and the criminal trial which takes priority over the discovery of substantive truth, is not the same as well as the ideology pursuing the procedure. Therefore, as stated in the majority opinion, if the judgment is immediately made depending on the legal validity of the act of compulsory performance, it would result from the difference between a civil trial and a criminal trial, i.e., where a null and void act of compulsory performance becomes final and conclusive in a civil trial, it is difficult to easily solve the result of a civil trial and a criminal trial.

In the end, as the majority opinion states, if the legal effect of the act of bearing obligations in violation of the duty and the validity of the crime of breach of trust are judged directly linked, the predictability about the establishment of the crime and the punishment is significantly lowered, thereby seriously impairing the function of guaranteeing the criminal law.

C. According to the Majority Opinion, if the other party knew or could have known the fact of abuse of representative authority at the time when the representative director’s act was committed by abuse of representative authority, the act is null and void, in principle, and if the other party knew or could not have known the fact of abuse of representative authority without negligence, the act is valid, and thus, the act is deemed to have reached the conclusion of the crime of breach of trust immediately. As such, depending on the other party’s perception or negligence, whether the other party would be subject to the crime of breach of trust depending on the existence of the other party’s perception or negligence. However, it is difficult to accept as a interpretation of the Criminal Act to view that the other party’s act of disposal by deception, such as fraud,

In addition, where the representative director has abused his/her power of representation and knew or could have known the abuse of power of representation, there is a high possibility of illegality or criticism of the act. Ultimately, according to the Majority Opinion, the illegality or possibility of criticism of the act of imposing the duty of representation is high, and the possibility of being invalidated is low. This conclusion is not only inconsistent with the concept of justice, but also violates the principle of responsibility or the principle of balance of crimes, which is pursued by the Criminal Act.

D. The constituent elements of the crime of breach of trust are whether the principal of the act constitutes a person who administers another’s business, whether the act constitutes an act in violation of his/her duty, whether the act constitutes an act in violation of his/her duty, and whether the act constitutes a case in which an actor or a third party acquires property benefits and causes property damage

Even if there is an act in violation of the duty, an attempted attempt cannot be established because the commencement of the performance is not recognized unless there is a possibility of property damage, and only there is a possibility of property damage, the commencement of the performance is recognized and the possibility of property damage is realized, and furthermore, the possibility of property damage is realized, and the possibility of realizing the possibility of property damage is reached. Even if the act of obligation as an act of breach of trust is valid, it is only the meaning that property damage is likely to occur from the perspective of criminal law, and therefore, infringement of property right as an element of the performance should be viewed as derived from the performance of the obligation

Nevertheless, since the risk of performance of the obligation in the event of the occurrence of the obligation is likely to be fulfilled or the value of the property per se is reduced, thereby punishing the subject of breach of trust by deeming the requirements for property damage in breach of trust as satisfying the requirements for property damage would ultimately be interpreted as relaxing the penal provisions against the language or system, and thus, violates

E. The Majority Opinion deems that, in the event that a representative director issued a promissory note by abusing his/her power of representation and such issuance becomes null and void, even if the promissory note is distributed to a third party, thereby resulting in the failure of the company to perform the obligations of the promissory note, and thereby the company’s obligation to perform the obligations of the promissory note reaches the end of the crime of breach of trust. However, since the third party distribution of the promissory note is made through a separate act by the payee, if the third party distribution time of the promissory note is deemed as the expiration date of the crime of breach of trust, the said time would be determined by the other party’s act

However, as indicated in the Concurring Opinion, if the offense of breach of trust is constituted as an offense of breach of trust, the company may take place at the time of actual performance of the obligation of the promissory note, etc., so it can be distinguished from attempted crimes and the number of times according to clear standards that meet

Likewise, if a case involving the act of bearing the obligation, such as joint and several sureties or the guarantee of payment, constitutes a crime of breach of trust, the risk as a possibility to cause the performance of the obligation and damages arising from the actual performance of the obligation should be determined by classifying the risk and the actual performance of the obligation. The same applies to other act of imposing the obligation. The same applies to the act of imposing the obligation. The risk may be realized and potential be extinguished. The potential risk constitutes attempted risk, and the actual risk may be regarded as infringement of legal interests. Accordingly, the actual amount of damages where the term has been established is considered as the amount of profit under Article 3 of the Specific Economic Crimes Act, and the problem raised in relation to the application thereof is resolved clearly.

F. There is no difference between the Majority and the Concurring Opinion regarding the establishment of the period of breach of trust in a case where the risk of breach of duty is realized and the damage is incurred. There is no difference between the Majority and the Concurring Opinion regarding the fact that there is an act of breach of duty, even if there is an act of breach of duty, if it cannot be deemed that there is a potential risk, an attempted crime cannot be established. The point where there is a difference in opinion

The Majority Opinion considers an act of breach of duty as an attempted attempt in favor of an actor in a case where the act of breach of duty is valid and invalid, it would be evaluated as an attempted attempt in favor of the actor. The Concurring Opinion considers the act of breach of duty as an attempted attempt in favor of either case, because there is no substantial and fundamental reason to assess the potential risk differently depending on the validity or invalidity of the act of breach of duty. Such an interpretation is consistent with the elements of breach of trust, which are separate from attempted and existing, and

As above, I express my concurrence with the Concurring Opinion.

Justices Yang Sung-tae (Presiding Justice)