(영문) 대법원 2021.7.15. 선고 2020도3514 판결

1. 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 obtain such benefit by acting in violation of his/her duty, thereby causing damage to another person who is the subject of the business. Thus, the subject of the crime must be in the position of administering another’s business.

In order to be "a person who administers another's business", the typical and fundamental contents of the relationship between the parties should be to protect or manage the other party's property based on the fiduciary relationship, such as the case where the whole or part of the business concerning the management of another person's property is performed on behalf of the other party, which goes beyond the interest-based relationship in the ordinary contract. The common contractual relationship in conflict of interest concerns that the other party gains the benefit of satisfaction of rights or realization of claims through the obligor's faithful performance, or that there is an incidental obligation to protect or take account of the other party in the performance of the contract cannot be deemed as a person who administers another person's business. The typical and intrinsic contents of the contract, such as delegation, should fall under the case where the contents of the typical and intrinsic performance of the other party's property are performed with a certain authority (see, e.g., Supreme Court en banc Decision 2019Do9756, Feb. 20, 200; Supreme Court en banc Decision 2019Do14340, Jun. 18, 2007).

B. In relation to monetary claims, even though a creditor gains a benefit from the satisfaction of a claim by lending money based on the debtor's trust in the performance of the payment and the debtor's faithful performance of the payment, the creditor cannot be deemed to have given his/her duty to protect or manage his/her property based on the debtor's trust. Since the performance of a monetary obligation is performed by the debtor as the performance of his/her obligation, it cannot be deemed that the creditor's business is performed by entrusting the creditor with the performance of his/her obligation. Therefore, in cases of monetary claims, the debtor does not constitute "a person who administers another's business in relation to the creditor" (see, e.g., Supreme Court Decision 2011Do3247, Apr. 28, 2011).

The same applies to a case where a debtor transfers another monetary claim to a creditor in order to secure an existing monetary obligation. “Obligation to maintain and preserve the value of a secured claim to be borne by a debtor according to a contract for security of claims is merely to achieve the purpose of security. Notwithstanding the conclusion of a contract for security of claims, the typical and essential contents of the relationship between the parties are still the realization of monetary claims, which are secured claims (see, e.g., Supreme Court en banc Decision 2019Do9756, Feb. 20, 2020).

Therefore, the obligation of a debtor to maintain and preserve the security value of a secured claim under a contract for security for claims is merely a debtor's own business, and the debtor cannot be deemed to have been in charge of the creditor's business based on a fiduciary relationship with the creditor, beyond an ordinary relationship of conflict of interest under a contract. In this case, the debtor cannot be deemed to constitute "a person who administers another's business in relation to the creditor."

2. The lower court found the Defendant guilty on the facts charged of the instant case where: (a) the Defendant, by borrowing KRW 350 million to the victim; (b) agreed to transfer KRW 220 million out of KRW 500 million (excluding KRW 280,000,000,000,000,000,000 for the actual secured debt amount of the right to lease on a deposit basis, which was already established on a deposit basis) for the purpose of collateral; (c) prior to giving notice of the transfer, the Defendant provided a mortgage on the right to lease on a deposit basis with a maximum debt amount of KRW 235,00,000 to a third party; and (d) obtained pecuniary benefits equivalent to KRW 2220,000,00

3. However, in light of the legal principles as seen earlier, the Defendant’s business concerning the maintenance and preservation of the value of security does not constitute another person’s business based on a fiduciary relationship to achieve the victim’s security purpose beyond the content of an obligation under a contract for security by collateral transfer. Therefore, even if the Defendant, prior to setting up a requisite to set up a security right to lease on a deposit basis with a third party, the Defendant cannot be deemed to have the status of “a person who administers another’s business” in accordance with a fiduciary relationship with the victim, and thus, the crime of breach of trust is not established. Nevertheless, the lower court convicted the Defendant of the facts charged in this case on the premise that the Defendant falls under this case. In so doing, it erred by misapprehending the legal principles on the meaning of “a person who administers another’s business”

4. Therefore, 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.