Whether there may be property damage in the event that an act of breach of trust or an act of breach of trust causes property loss at the same time, and at the same time, an act of breach of trust or an act of breach of trust causes property loss (negative)

Article 356 of the Criminal Act

Supreme Court Decision 94Do1375 delivered on November 21, 1995 (Gong1996Sang, 127) Supreme Court Decision 2004Do771 Delivered on April 9, 2004 (Gong2004Sang, 857) Supreme Court Decision 2004Do7053 Delivered on April 15, 2005 (Gong2005Sang, 791)

Defendant 1 and one other

Defendants

Attorneys Han Jin-jin et al.

Seoul Eastern District Court Decision 2004No673 Decided June 9, 2005

The judgment below is reversed, and the case is remanded to the Seoul Eastern District Court Panel Division.

The grounds of appeal are examined.

1. As to the act of breach of duty and conspiracy

As indicated in its reasoning, the lower court determined that the Defendants’ act of paying remuneration to full-time officers and paid-time employees on the list of crimes (hereinafter “executive officers and employees of this case”) without following such procedures is an act of breach of duty by the Defendants’ invitation, on the grounds that the expenditure of expenses for the operation of the association, including remuneration for executive officers and employees, was delegated to the board of representatives by the resolution of the inaugural general meeting of the reconstruction association of this case until the establishment of the association is authorized.

In light of the records, we affirm the judgment of the court below and there is no error of law such as misunderstanding of facts against the rules of evidence, violation of the duties of breach of trust on duty, or misapprehension of legal principles as to co-principals.

2. As to the loss of property

In the crime of breach of trust or the crime of occupational breach of trust, the term "where property is damaged" includes not only a case where a real loss is incurred but also a case where a risk of actual loss of property has been caused, and the existence of a property loss is not determined by legal judgment but from an economic point of view. However, the term "property loss" means a case where a property loss is incurred to the principal's state of property, i.e., where the act of breach of trust causing a property loss at the same time, and where the act of breach of trust causes a property loss at the same time, and where there is no other property loss (the risk of actual loss or actual loss of property), it cannot be said that there is a decrease in the total value of property, i.e., a decrease in the value of property, if there is no other property loss (see Supreme Court Decision 2004Do7053, Apr. 15, 2005).

According to the records, the reconstruction association of this case is acknowledged to have a full-time officer or paid employee through a resolution of the general meeting or the board of representatives when it is deemed necessary for the execution of its business affairs. Such full-time officer or paid employee shall be paid remuneration according to the remuneration regulations. All of the officers and employees of this case shall be appointed or employed through a resolution of the board of representatives pursuant to the above articles of association. The number of officers and employees of this case, class and level of remuneration shall be relatively wide, and refer to the actual status of the payment of remuneration to full-time employees of other reconstruction associations in addition to the payment regulations of the National Rebuilding Association. Accordingly, the payment of remuneration shall be determined by the resolution of the board of representatives.

Therefore, if the officers and employees of this case lawfully appointed or employed have carried out actual business or labor for the reconstruction association of this case, the reconstruction association of this case is obligated to pay remunerations corresponding to the performance of their business or the provision of labor in accordance with the articles of association, the relevant laws and regulations, etc., even though they did not enact the rules on remuneration for officers and employees after the resolution of the general meeting of members of the association, so it cannot be readily concluded that the reconstruction association of this case had a decrease in the total value of property, i.e.

Therefore, with respect to the payment of remuneration to the executives and employees of this case who did not undergo legitimate procedures, the court below further examined whether the executives and employees of this case actually performed their duties, whether the above payment of remuneration was equivalent to the performance of their duties, whether there was no other property damage to the reconstruction association of this case due to the above payment of remuneration, and whether there was a decrease in the total value of property in the association due to the above payment of remuneration, and should have determined whether there was a decrease in the value of property in the amount of property damage only if this is recognized.

Nevertheless, the court below did not deliberate and decide on these issues, and judged that there is no property damage because it did not follow the legitimate procedure and did not cause property damage to the reconstruction association of this case, and recognized the establishment of the crime of occupational breach of trust immediately. This is erroneous in the misapprehension of legal principles as to property damage caused by occupational breach of trust and mistake of facts by violating the rules of evidence or failing to exhaust all necessary deliberations, which affected the conclusion of the judgment. The appeal pointing this out has merit.

3. Conclusion

Therefore, without further proceeding to decide on the remaining grounds of appeal, 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 on the bench.

Justices Kim Nung-hwan (Presiding Justice)