[1] Subjective requirements for occupational breach of trust and the method of proof

[2] Whether an auxiliary agency may be the subject of occupational breach of trust (affirmative)

[3] Where a crime of occupational breach of trust is established through an act of unfair external trading (=the scope of damages) and where a third party acquires the above credit transaction amount, the scope of "value of property benefits acquired by a third party" under Article 3 of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (=the total amount of the transaction proceeds)

[1] In order to establish a crime of occupational breach of trust, there should be a subjective element that causes property damage to the principal for his/her awareness of breach of duty and for the benefit of his/her own or a third party. In other words, if the defendant denies it, it is inevitable to prove by means of proving indirect facts having considerable relevance with the intention due to the nature of the object. However, there is no other method than reasonably determining the link of facts based on the records of close observation or analysis based on normal empirical rule.

[2] A person who administers another's business in the course of occupational breach of trust includes a person who does not have the inherent authority to handle the business and directly or indirectly as his/her subsidiary organ.

[3] Since the crime of breach of trust does not need to determine the actual amount of property damage, it is a dangerous crime that is established immediately in cases where the execution of property right is likely to be impossible, or where there is a risk of damage. Thus, in cases where the defendant commits an illegal credit transaction in violation of his/her occupational duty and thereby the crime of breach of trust is established, not only the amount of credit transaction exceeding the value of the security, or the amount of credit transaction where it is impossible to recover, but also the amount of the total amount of the credit transaction transaction where it is likely to be impossible to exercise property right or there is a risk of damage, and if a third party acquires it, it shall be deemed that the total amount constitutes the value of property profit acquired by the third

[1] Articles 355(2) and 356 of the Criminal Act / [2] Articles 355(2) and 356 of the Criminal Act / [3] Articles 355(2) and 356 of the Criminal Act; Article 3 of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes

[1] Supreme Court Decision 97Do618 delivered on May 28, 1996 (Gong1996Ha, 2062), Supreme Court Decision 97Do163 delivered on June 13, 1997 (Gong1997Ha, 2105), Supreme Court Decision 97Do2919 delivered on June 27, 1997 (Gong1997Ha, 2234), Supreme Court Decision 97Do2919 delivered on February 10, 198 (Gong1998Sang, 818), Supreme Court Decision 98Do2074 delivered on February 9, 199 (Gong199Sang, 510), Supreme Court Decision 98Do4299 delivered on April 13, 199 (Gong2998, 198) 98Do39899 delivered on April 29, 209)

Defendant 1 and one other

Defendants

Attorney Gangwon-at-Law

Gwangju High Court Decision 98No482 delivered on December 30, 1998

All appeals are dismissed.

Defendants and their state appointed defense counsel's grounds of appeal are examined together.

1. As to the defendants' violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Occupational Breach of Trust)

In order to establish a crime of occupational breach of trust, a subjective element must be the awareness that the principal causes property damage to the principal for his/her awareness of violation of duties and for his/her own interest or a third party’s interest (see, e.g., Supreme Court Decision 95Do161, May 28, 1996). In cases where the defendant denies it, such intent cannot be proven by means of proving indirect facts having considerable relation with the intention due to the nature of the object (see, e.g., Supreme Court Decision 97Do618, Jun. 13, 1997). However, what constitutes indirect facts having considerable relation with the intent is based on the normal empirical rule and there is no other way to reasonably determine the link of facts through the close observation or analysis power (see, e.g., Supreme Court Decision 97Do163, Jun. 27, 1997). Meanwhile, in order to establish a joint principal offender, a subjective requirement is an objective act necessary for the crime of occupational control through a joint intent (see, etc. 97.

The court below, based on the evidence adopted by the court of first instance, found that the defendants had no criminal intent of breach of trust at the time of the above act, since they acquired collateral first in accordance with the provisions inside the association, etc., and concluded an agreement on credit transactions within the extent of the collateral value assessed through accurate appraisal and assessment standards, but if the amount of such agreement exceeds 500 million won, it shall be examined by the National Agricultural Cooperative Federation, and even if credit transactions are performed closely by closely ascertaining the degree of credit of customers, it shall be done without establishing any collateral, and if the defendants did not perform an act of lowering their duties due to the conclusion of the agreement and the resolution of the board of directors, etc. of the court below without any separate agreement on credit transactions with the defendants, even though they had an occupational duty to make such credit transactions, it cannot be said that the defendants did not have any criminal intent of breach of trust at the time of the above act (the defendants did not enter into an agreement with the superior of the court below as well as those of the first instance court's first instance court's order to directly participate in the sale of the defendant's first instance's order.

In addition, in the case of occupational breach of trust, a person who deals with another's business is not limited to a person who performs such business as his own authority and includes a person who is directly or indirectly in charge of such business (see, e.g., Supreme Court Decision 9Do1911, Jul. 23, 1999). As seen earlier, as a sales division of the partnership's business, Defendant 2, who is involved in the sales business under the direction and supervision of Defendant 1, a commercial party, is not only a sales division, but also a person who actually takes part in the external sales transaction with Defendant 2 in the court below, as seen above, constitutes "a person who administers another's business."

Furthermore, the crime of breach of trust does not need to determine the actual amount of property damage, and is at risk of making it impossible to exercise the property right, or where there is a risk of damage (see Supreme Court Decision 88Do1247, Apr. 11, 1989). Thus, in this case, if the crime of breach of trust is established due to an unfair external financial transaction in violation of the occupational duty of the Defendants, it shall be deemed that the total amount of the credit transaction amount in excess of the value of the collateral or the amount of the credit transaction amount in which it is difficult to recover actually is likely to cause the impossibility of exercising the property right, or there is a risk of damage, and if a third party acquires it, it shall be deemed that the total amount of the credit transaction amount in question falls under the value of property profit acquired by the third party stipulated in Article 3 of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (see Supreme Court Decision 95Do1043, Jul. 12, 196). 200>

The ground of appeal on this part is without merit.

2. As to Defendant 1’s occupational breach of trust

Examining the evidence adopted by the court of first instance as cited by the court below in light of the records, since the facts constituting the crime in this part against Defendant 1 are sufficiently recognized, the court below's finding guilty of the facts constituting the crime is just, and there is no violation of law of misunderstanding of facts. In addition, as stated in the judgment of the court below, inasmuch as the contents of the above Defendant's act of breach of trust are deemed not to comply with the credit limit of transaction that the board of directors decided to make a transaction within the scope of the transaction, but to have done credit transaction exceeding the discretionary limit, the amount of damages of the association (the principal) caused by the act of breach of trust should be deemed to be the amount exceeding the above transaction limit, and regardless of the above transaction limit, it shall not be deemed to be the amount calculated by deducting the total amount of the back payment of the back payment of the credit transaction or the amount of the back payment collected during the same period.

This part of the grounds of appeal is without merit.

Therefore, all appeals are dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Jack-dam (Presiding Justice)