Whether legitimate power of representation of an actor is necessary for the establishment of a crime of breach of trust (negative)

Since a person who administers another's business in breach of trust has a duty to protect or manage another's property based on a bilateral fiduciary relationship, it does not require the perpetrator to have a legitimate power to dispose of another's property in an external relationship.

Article 355(2) of the Criminal Act

Supreme Court Decision 75Do2245 delivered on May 11, 1976 (Gong1976, 9195) Supreme Court Decision 86Do2490 Delivered on April 28, 1987 (Gong1987, 924)

Defendant

Defendant

Attorney Cho Hong-hoon

Seoul District Court Decision 97No3259 delivered on November 12, 1997

The appeal is dismissed.

The grounds of appeal are examined.

1. Reviewing the evidence of the judgment below in light of the records, it is not erroneous in the misapprehension of legal principles as to mistake of facts against the rules of evidence, or the crime of breach of trust, as alleged in the grounds of appeal, in the judgment below where there was proof of crime against the defendant as to the defendant's crime of violation of the rules of evidence, since the defendant violated his duty to manage the transport deposit deposited in the bank account opened by the importer until the settlement date of export payment, and thereby, the victim can be returned thereafter so that the defendant would be paid the cargo brokerage company with an agreement to convert the above transport deposit into the transport deposit to the transport fee to be paid by the exporter and the air brokerage fee, and thereby making the exporter

2. In case of the crime of breach of trust, a person who administers another person's business is the principal content of the person's duty to protect or manage another person's property based on bilateral trust relationship (see Supreme Court Decision 75Do2245, May 11, 1976). Thus, in establishing the crime of breach of trust, it does not require the actor to have a legitimate power of attorney to dispose of another person's property in an external relationship.

As seen earlier, insofar as it is recognized that the Defendant consented to converting the instant transport deposit into transport charges, etc. in violation of a fiduciary relationship with the victim and thereby causing damage to the victim, such act does not interfere with the conclusion of the crime of breach of trust. From the contrary perspective, the allegation in the grounds of appeal that the Defendant did not have a legitimate authority to consent to converting the transport deposit deposited by the victim into transport charges, etc., and thus, did not have a position to manage another’s business is not acceptable. In so doing, contrary to what is alleged in the grounds of appeal, the lower court did not err

3. Therefore, the appeal is dismissed. It is so decided as per Disposition by the assent of all participating judges.

Justices Cho Cho-Un (Presiding Justice)