[1] The meaning of "where the damage was incurred," which is an element for establishing the crime of breach of trust

[2] The case affirming the judgment of the court below which acquitted the representative director of the occupational breach of trust on the ground that even if the representative director affixed the corporate seal impression to the loan certificate prepared and issued in his personal name as to the debt of loans, it cannot be deemed that the company suffered property loss or the risk of property loss has occurred

[1] In order to establish a crime of breach of trust, it should be recognized that the act of breach of trust has been identified from an economic point of view that the principal has suffered a real loss or at least a risk of actual loss of property.

[2] The case affirming the judgment of the court below which acquitted the representative director on the part of occupational breach of trust on the ground that, even if the representative director affixed the corporate seal impression on the loan certificate prepared and delivered in his personal name as to the debt of a loan, it cannot be deemed a legitimate representative act committed by the representative director, and thus, the company did not bear the debt of loan based on the above loan certificate, and furthermore, since the borrower knew or could have known that the above act was not a legitimate representative act, it is not a legitimate representative act, and there is no room for the company to bear the employer's liability or liability for damages due to corporate tort, etc., and therefore, it cannot be viewed

[1] Article 355 (2) of the Criminal Act / [2] Articles 355 (2) and 356 of the Criminal Act

[1] Supreme Court Decision 95Do531 delivered on May 30, 1997 (Gong1997Ha, 1952) Supreme Court Decision 99Do2983 delivered on February 11, 200 (Gong2000Sang, 738)

Defendant

Prosecutor

Seoul District Court Decision 2003No10348 Delivered on January 15, 2004

The appeal is dismissed.

We examine the grounds of appeal.

In order to establish a crime of breach of trust, it should be recognized that the act of breach of trust is recognized from an economic point of view that the principal actually sustained a loss or at least caused a risk of actual damage to property (see Supreme Court Decision 99Do2983, Feb. 11, 200).

According to the facts duly established by the court below, around July 26, 1997, the defendant, who was the representative director of the non-indicted 1 corporation, borrowed KRW 200 million from 10 million for personal purposes, prepared a loan certificate under his personal name, and delivered it to 10 million. However, around October 198, 198, the defendant was bound by the Seoul detention house due to the suspicion of embezzlement of the funds of the non-indicted 1 corporation, and since it is difficult for the defendant to receive the above loan from 1 to 200 million won due to 1 Seoul detention house, the defendant was found to have been able to receive the above loan from the non-indicted 1 corporation, and the defendant did not have the above 1 corporation's personal seal impression affixed to the non-indicted 1 corporation or the above 1 corporation's personal seal impression affixed to the non-indicted 1 corporation. Accordingly, even if the defendant did not have the above 1 corporation's personal seal impression affixed to the above loan certificate and the defendant's above 1 corporation's legal representative seal impression was not issued.

In the same purport, the court below reversed the judgment of the court of first instance which found the defendant guilty of the crime of occupational breach of trust of this case and found the defendant not guilty, and there is no error of law by misunderstanding facts against the rules of evidence or by misapprehending the legal principles on the crime of occupational breach of trust.

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

Justices Shin Shin-chul (Presiding Justice)