(영문) 대법원 2020.4.29. 선고 2020도1411 판결

1. A. The crime of breach of trust is established when a person who administers another’s business obtains pecuniary benefits or causes damage to another person who is the principal agent of the business by acquiring such benefits through an act in violation of one’s duty. As such, the principal agent of the crime is required to be in a position to deal with another’s business. Here, “a person who administers another’s business” to be “a person who administers another’s business” should be in a position to deal with the other’s business, such as a case where the principal agent performs all or part of the business regarding the management of another’s property on behalf of another person, the principal agent must be in a way to protect or manage another’s property based on a fiduciary relationship between the parties beyond the conflict of interest in the ordinary contract (see, e.g., Supreme Court Decisions 86Do2490, Apr. 28, 1987; 2008Do1722, Feb. 26, 201; 2008Do10479, Jan. 20, 2014).

B. Even if a debtor provided movable property to a creditor as a security for the purpose of securing a pecuniary obligation, and thereby, was liable to maintain and preserve the value of the security, or to not perform any act that may interfere with the execution of the security right by either disposing of or destroying or damaging the security, it cannot be deemed that the debtor, on the basis of a fiduciary relationship with the creditor beyond an ordinary contractual relationship, does not constitute a "person who administers another's business." Therefore, the debtor cannot be deemed as a "person who administers another's business" who is the subject of the crime of breach of trust, and even if the debtor reduces or loses the value of the security by disposing of the security to a third party, thereby causing danger to the creditor's exercise of the security right or the realization of the claim, it cannot be said that the crime of breach of trust is established (see Supreme Court en banc Decision 2020, Feb. 20, 202) and 2.

A. The summary of the facts charged in this case is that the defendant borrowed KRW 40 million from the victim B and entered into a contract for the transfer of security (hereinafter referred to as the "contract for transfer security in this case") that transfers the whole of the 'E' located in Seongbuk-gu Seoul Special Metropolitan City D' (hereinafter referred to as the "E' in this case') in which the defendant operated, the defendant would incur property damage equivalent to KRW 40 million to the victim by selling the whole of the said house to another person in violation of such duty. The court below affirmed the judgment of the first instance court which convicted the defendant of the facts charged.

B. According to the facts and records acknowledged by the court below, the transfer security contract of this case is a typical transfer security contract that the creditor shall acquire in lieu of paying the debt when the defendant did not perform his/her obligation, setting up a transfer security by means of an occupation and revision as to the whole of the house units owned by the defendant in order to secure a loan to the defendant. It is also difficult to view that the creditor B, separate from the transfer security contract, entered into a special agreement that entrusts the defendant with the management of all of the house units of this case, on the basis of a new relationship between the creditor B and the debtor.

C. Ultimately, insofar as the typical and essential contents of the relationship between the Defendant and the obligee B in the instant transfer security agreement are repayment of the debt borrowed and collateral therefor, and the Defendant cannot be deemed to have been entrusted with the creditor’s affairs based on the fiduciary relationship with the obligee beyond the conflict of interest in the ordinary contract, the Defendant cannot be deemed as a person who administers another’s affairs in relation to the obligee. Nevertheless, the lower court convicted the Defendant of the instant facts charged on the premise that the Defendant was in the position of a person who administers another’s affairs.

The court below erred by misapprehending the legal principles on "a person who administers another's business" in breach of trust.

3. Therefore, the lower judgment is reversed, and the case is remanded to the lower court. It is so decided as per Disposition by the assent of all participating Justices on the bench.