The judgment of the court below (including acquittal in the grounds) shall be reversed, and the case shall be remanded to the Seoul High Court.

The grounds of appeal are examined.

1. As to the violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Misappropriation) (hereinafter "Specific Economic Crimes Act").

A. The crime of breach of trust is established when a person who administers another’s business obtains pecuniary advantage or let a third party acquire it by acting in violation of his/her duty, thereby causing damage to another person who is the subject of the business. Therefore, the subject of the crime must be in the position of administering another’s

Here, in order to be “a person who administers another’s business,” the primary substance of the relationship between the parties ought to be to protect or manage another’s property on the basis of a fiduciary relationship, which goes beyond an interest-based relationship under an ordinary contract, such as the case where the whole or part of the business concerning the management of another’s property

(See Supreme Court Decision 86Do2490 Decided April 28, 1987; Supreme Court Decision 2008Do11722 Decided February 26, 2009; Supreme Court en banc Decision 2008Do10479 Decided January 20, 201; Supreme Court en banc Decision 2014Do363 Decided August 21, 201, etc.). The relationship between the other party’s profit-sharing relationship and the other party’s profit-making by performing his/her contractual rights or by performing his/her contractual obligations in good faith is that the other party obtains the other party’s benefit of satisfaction of the debtor’s rights under a contract or of realizing his/her claims under a contract.

The sole fact that there is an incidental obligation to protect or take account of the other party in performing a contract does not constitute a person who administers another person’s business (see, e.g., Supreme Court Decision 2015Do1301, Mar. 26, 2015). If the content of performance, which is a typical essential element of a contract, is entrusted with the affairs of the other party’s property with a certain authority, such as delegation, etc., it should be deemed that

In monetary debt relationship, the creditor lends money on the basis of the debtor's trust in performance of payment and satisfaction of the debt through the debtor's faithful performance of payment.