The meaning of "other person's business" in breach of trust

Article 355(2) of the Criminal Act

Supreme Court en banc Decision 2008Do11722 Decided February 26, 2009 (Gong2009Sang, 401) Supreme Court Decision 2015Do6057 Decided June 4, 2020 (Gong2020Ha, 1419) Supreme Court en banc Decision 2019Do14340 Decided June 18, 2020 (Gong2020Ha, 1429)

Defendant

Defendant

Law Firm all others, Attorneys Kwon Yong-han et al.

Changwon District Court Decision 2016No548 decided May 19, 2016

The judgment of the court below is reversed, and the case is remanded to Changwon District Court.

The grounds of appeal are examined.

1. The crime of breach of trust is established when a person who administers another’s business obtains pecuniary benefits by an act in violation of his/her duty and causes damage to another person who is the principal agent of the business, and the principal agent of the crime must be in a position to deal with another’s business. In order to deal with another’s business, the principal agent of the crime must be in a position to deal with another’s business. The principal agent of the crime is required to protect or manage another’s property based on a fiduciary relationship between the principal and the parties, beyond a simple relationship of claims and obligations. If the principal’s business is not one of the other’s business but is one of the other’s own business, the principal does not constitute a person who administers another’s business (see, e.g.

2. The summary of the facts charged of this case is that the Defendant, the representative director of Nonindicted Co. 2 (hereinafter “Nonindicted Co. 2”) was in violation of the agreement of this case to make a provisional registration on the forest land of this case owned by Nonindicted Co. 2, thereby creating a right to collateral security on the forest land of this case to a third party and causing property damage to the victim. The lower court upheld the first trial judgment that convicted the Defendant of the above facts charged.

Comprehensively taking account of the facts acknowledged by the lower court and the facts duly admitted evidence, Nonindicted Co. 1 is the real representative of Nonindicted Co. 2 and the Defendant is the representative director in the name of Nonindicted Co. 2, and the instant agreement is the content that Nonindicted Co. 1 completed the provisional registration of the instant forest land and the establishment registration of mortgage in order to secure KRW 2.1 billion against the victim of the instant forest land, etc., and that Nonindicted Co. 2 provided related documents, such as provisional registration, etc.

Examining these facts in light of the legal principles of the en banc decision as seen earlier, insofar as the typical and fundamental contents of the relationship between Nonindicted Company 2 and the victim are repayment of the above borrowed debt and collateral therefor, and cannot be deemed to have been entrusted to the victim’s business based on the fiduciary relationship with the victim beyond an ordinary contractual relationship with the victim, the Defendant, who is the representative director of Nonindicted Company 2, cannot be deemed to constitute “a person who administers another’s business” in relation to the victim. The lower court convicted the Defendant on the premise that the Defendant was in the status of a person who administers another’s business, who declared the judgment of the lower court prior to the conclusion of the new legal principle by the en banc decision, on the premise that the Defendant was in the position of a person who administers another’s business. In so determining

3. Therefore, without examining the remaining grounds of appeal, the judgment of the court below is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition.

Justices Noh Tae-tae (Presiding Justice)