[1] The method of determining whether a manager had an intent to obtain an unjust enrichment and intent to obtain an unjust enrichment in relation to management determination

[2] In a case where the Defendants, an executive officer of a mutual savings bank Gap, purchased land under the name of another person, establish Eul, a special purpose corporation (SPC), loaned bank funds to Eul, thereby causing losses to Gap bank by carrying out the golf course construction business under the name of Eul, and was prosecuted for violating the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Misappropriation), the case holding that the judgment below which acquitted the Defendants on the ground that the Defendants cannot be recognized as intentional occupational breach of trust, was erroneous in

[1] In determining whether a manager had an intent to obtain an intent to obtain an occupational breach of trust or an unlawful acquisition with respect to a business judgment, the intent of breach of trust shall be recognized only where it is recognized that the act is an intentional act with the awareness that the manager or a third party would obtain property gains and that it would inflict loss on the principal, in light of various circumstances, such as the process and motive leading up to the business judgment in question, the content of the business subject to determination, the economic situation of the company, and the probability of occurrence of loss and acquisition of profits, etc., and the intent to obtain an occupational breach of trust should not be recognized. However, even when considering all the above circumstances as to the business judgment of the manager, the manager shall not be held liable solely for the occurrence of loss on the ground that he/she committed an intentional act with the awareness that he/she or the third party would inflict loss on the principal. However, even if he/she did not have such awareness, even if considering all of the above circumstances, the intent to obtain pecuniary gains or to obtain unlawful gains is recognized if he/she did so.

[2] In a case where the Defendants, an executive officer of a mutual savings bank Gap, purchased land under the name of an executive officer or employee, and established Eul corporation (SPC), and loaned Gap bank funds to Eul, and thereby caused damage to Gap bank by promoting the golf course construction project under the name of Eul, and was prosecuted for violating the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Misappropriation), the Court held that the judgment below erred in the misapprehension of legal principles on the ground that the Defendants did not recognize the Defendants' intentional breach of occupational breach of trust on the ground that the Defendants violated the relevant Acts and subordinate statutes, such as the Mutual Savings Banks Act, and did not properly examine the business feasibility of Gap bank's funds without any specific review in violation of the duties of executive officers, and without any specific review on business feasibility, committed an act in violation of the laws and regulations, as well as the duty of executive officers, thereby causing damage to the principal and causing a third party to gain property profits.

[1] Articles 35 (2) and 356 of the Criminal Act / [2] Articles 30, 355 (2), and 356 of the Criminal Act; Article 3 (1) of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes; Articles 1, 11, 18-2, and 39 of the Mutual Savings Banks Act

[1] Supreme Court Decision 2002Do4229 Decided July 22, 2004 (Gong2004Ha, 1480), Supreme Court Decision 2007Do6075 Decided November 15, 2007, Supreme Court Decision 2009Do13868 Decided April 29, 2010, Supreme Court Decision 2010Do387 Decided October 14, 2010 (Gong2010Ha, 2120)

Defendant 1 and four others

Prosecutor

Law Firm, Kim & Lee LLC, Attorneys Lee Jae-hwan et al.

Busan High Court Decision 2009No514 decided December 3, 2009

The part concerning Defendant 1, 3, 4, and 5 among the judgment of the court below and the part not guilty against Defendant 2 shall be reversed, and this part of the case shall be remanded to Busan High Court.

The grounds of appeal are examined.

1. In the crime of occupational breach of trust, the intention is established by combining the perception that the person who administers another's business causes property damage to the principal and takes property benefits of himself or a third party, thereby causing such profit and loss is in breach of his duty.

Therefore, in determining whether a manager had an intent to acquire an intentional or unlawful acquisition in connection with a management judgment, the intent of breach of trust should be recognized only in cases where it is recognized that such act is an intentional act with the awareness that the manager or a third party would obtain property benefits and that it would inflict damage on the principal in light of the circumstances such as the process and motive leading up to the management judgment in question, the contents of the business, the economic situation of the company, the probability of occurrence of loss and the possibility of acquisition of profit, etc. In addition, the intent of breach of trust should be recognized only in cases where it is recognized that the manager or a third party would have an intentional act with the awareness that he/she would obtain property benefits and that there was an intentional act with the awareness that he/she would incur damage to the principal. Even though there was no such recognition, the manager shall not be held liable solely on the ground that he/she had committed an intentional or negligent act with the duty of care (see, e.g., Supreme Court Decisions 200Do

However, in light of the specific circumstances, such as the content and nature of the business performed in the course of breach of trust, the act of breach of trust refers to any act that does not perform as a matter of course an act expected to not perform, or is expected not to perform as a matter of course, under the provisions of the law, the content of the contract, or the principle of trust and good faith, and thus, in light of the management judgment, the act of breach of trust and the trust relationship with the principal is committed. Therefore, even if considering all the above circumstances as to the management judgment of the manager, even if considering the above circumstances, the intent of acquiring property benefits or causing a third party to acquire it by failing to perform, or not doing, an act that is anticipated to perform as a matter of course in the specific circumstances and the content of the contract, or the principle of trust and good

2. The facts charged against Defendant 2 and the summary of the instant charges against the other Defendants are as follows: (a) the Defendants, who were in the position of the representative director, director, or auditor of the savings bank, should not directly engage in the golf course business; and (b) in the case of lending the golf course to an enterprise which will build the golf course, the Defendants violated the occupational duties that should be given by taking appropriate measures for securing claims; (c) in the form of lending the name of Nonindicted Party 2, etc., an officer or employee of the savings bank, and lending the land purchase cost to the employees of the savings bank; and (d) in the form of lending the name of Nonindicted Party 1’s own funds to the Ulsan-gun, Ulsan-gun, Seoul Special Metropolitan City land (hereinafter “Ulju-gun land”) to secure claims, such as the establishment of collateral security at the savings bank’s site; and (e) in the form of purchasing the land from 60, 79, 636, 57 on December 5, 2008 to 20, 38.

The court below found the Defendants not guilty of the charges on the ground that the Defendants did not prove that they had any intent to commit a crime of breach of trust merely because they violated the relevant laws, such as the Mutual Savings Banks Act, while promoting the construction of golf courses, they did not immediately recognize the intent to commit a crime of breach of trust, and that they had a self-surveyd and discussed about the feasibility of business while purchasing the site of golf courses or promoting the construction of golf courses. Generally, the construction of golf courses was promoted by means of an administrative civil petition under the conditions of various restrictions or administrative regulations under the authorization and permission, and there is room for doubt that the Defendants only spent the funds of the savings bank Non-Indicted 1 in the process of the above promotion, but it does not seem to have paid the land, etc. in advance by paying the land price, etc. by personal emotional relationship or illegal honorarium or solicitation, or not spent without any consideration.

3. However, it is difficult to accept the above determination by the court below for the following reasons.

A. First of all, according to the facts acknowledged by the court below, the defendants purchased the Ulsan-gun's land in the name of relative or branch of the officers and employees of the savings bank of non-indicted 1, and established the non-indicted 5 corporation (SPC), a special purpose corporation (SPC) on the ground of the defendant 4 as the representative director, and carried out the golf course construction project in the name of non-indicted 5 corporation. Even according to the facts acknowledged by the court below and the evidence adopted, it can be sufficiently confirmed that the above series of acts are actually carried out by the non-indicted 1 savings bank for the purpose of carrying out the golf course construction project directly, and it goes beyond the scope of the business of the savings bank under Article 11 of the Mutual Savings Banks Act or the articles of incorporation of the non-indicted 1 savings bank against the provisions of subparagraph 2 of Article 18-2 of the Mutual Savings Banks Act restricting non-indicted 4's non-business real estate ownership. Thus, the defendants' act in violation of Article 18-2 of the Mutual Savings Banks Act's basic purpose and purpose of its establishment (12).

Therefore, it cannot be deemed that the Defendants did not have any intent to obtain the intent to obtain the intent to obtain the intent of breach of trust or to obtain the pecuniary advantage from Nonindicted 1 Savings Bank due to such an act of breach of trust. In addition, it cannot be deemed that such an act of breach of trust does not constitute a case where the principal cannot be held liable for breach of trust merely because of the occurrence of a loss to the management judgment made in the normal course of business.

Ultimately, the lower court cannot be held liable for the crime of occupational breach of trust solely on the ground that the Defendants did not have the intent to commit occupational breach of trust, namely, the following circumstances: (a) undergo an examination and discussion about the feasibility of business in the process of implementing the business, and there was no legal method, but did not make any progress of the business; and (b) did not incur any compensation or solicitation from the opposite contractual party.

B. Furthermore, according to the evidence duly examined by the lower court and the first instance court, the Defendants, at the time of determining the purchase of the above land and the implementation of the project, continued to have been recommended by Nonindicted 6 Co. 7 as the site for the golf course project and confirmed the land use plan, based on the market price of surrounding land; whether the golf course project can be conducted on the pertinent land; and whether the land purchased at KRW 4.75 billion was 2.8 billion before the Defendants’ purchase of the above land at KRW 20 billion, on the land that was located in the Seoul Metropolitan City basic urban planning or the conservation and management area of the above 100,000,000,000 won in consideration of the average of the construction cost of the above 100,000,000 won in consideration of the construction cost of the above 10,000,000 won in consideration of the construction cost of the 1st,000,000 won in consideration of the following facts:

C. Therefore, the Defendants promoted a golf course construction project, which was not implemented or held by Nonindicted Bank 1 as a substantial party to the relevant laws, such as the Mutual Savings Banks Act, on the ground that it violated the duties of the executives, and without making a proper review on the feasibility of the business. This is a case where, as a matter of course, the Defendants committed an act in violation of a fiduciary relationship with the principal, and thereby, caused property damage to the principal, and caused a third party to gain property profit.

On the contrary, the court below reversed the judgment of the court of first instance which found the Defendants guilty of this part of the charges without examining the remaining elements of the crime of occupational breach of trust, such as the specific act of occupational breach of duty and the existence of property damage and profit therefrom, which readily concluded that the Defendants cannot recognize the intent of occupational breach of trust. The court below erred by misapprehending the legal principles on the establishment of the crime of occupational breach of trust, and the grounds of appeal pointing this out are with merit.

4. Scope of reversal against Defendant 2

In a case where the appellate court rendered a verdict of innocence on the part of several criminal facts prosecuted for concurrent crimes, and the prosecutor appealed on the part of innocence but did not appeal all the defendant and the prosecutor with respect to the guilty part, the guilty part becomes final and conclusive with the intention of appeal period (see, e.g., Supreme Court Decision 2005Do7473, Jun. 28, 2007). The part of the crime of offering of bribe in concurrent relation with the above acquittal part of the lower court as to Defendant 2 was found guilty at the lower court, and it became final and conclusive due to the failure of the above defendant and the prosecutor to file an appeal, the scope of reversal of the lower judgment against the above

5. Conclusion

Therefore, among the judgment below, the parts against Defendant 1, 3, 4, and 5 and the part against Defendant 2 not guilty are all reversed, and this part of the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Sang-hoon (Presiding Justice)