Whether a representative institution of a corporation can be the subject of breach of trust if the subject of duty to perform another person's business is a corporation (affirmative)

The majority opinion: in the case of the crime of breach of trust under Article 355 (2) of the Criminal Act, even if a juristic person becomes the subject of the obligation to manage another's business, it shall be a juristic person, but it shall not be capable of committing the crime, and since the representative's business cannot be realized by the representative's decision-making in accordance with the representative's decision-making, which is a natural person representing the juristic person, it shall be responsible for performing the business in accordance with the contents of the obligation that the juristic person bears. Therefore, in the case of another's business, the juristic person cannot be the subject of the crime of breach of trust, and the representative's agency

Minority Opinion: A juristic person is merely a subject of a private law and has no criminal capacity, but also a subject of a private law, so the crime of breach of trust cannot be established, regardless of this, and the representative authority of the juristic person is responsible for performing the business in accordance with the content of the obligation that the juristic person bears to another person, and it is not a duty that the representative authority of the juristic person directly bears to the other person, and it is not a duty that the juristic person is responsible for performing the business in accordance with the content of the obligation that the juristic person bears to the other person, so

[The en banc Decision: 82.02.09. 80Do1796; 82Do1527, Feb. 2, 83.02]

Article 355(2) of the Criminal Act

Supreme Court Decision 82Do1527 delivered on February 22, 1983 (overruled) 80Do1796 delivered on February 9, 1982 (overruled) 83Do2774 delivered on October 10, 1984 (Dong Branch) 82Do2359 delivered on October 10, 1984 (Dong Branch)

Defendant 1 and one other

Prosecutor

Suwon District Court Decision 82No181 delivered on June 18, 1982

The non-guilty portion of the judgment of the court below shall be reversed, and that part of the case shall be remanded to Suwon District Court Panel Division.

We examine the prosecutor's grounds of appeal.

The judgment of the court below is justified. Defendant 1 was working as the representative director of the non-indicted corporation, and Defendant 2 was engaged in the commercial business after purchasing the commercial building constructed by the above company, and Defendant 2 conspired with the non-indicted 2's representative director of the above company's 471 complex 16-3 (new lot number 668) to sell the building at 12.8 square meters and 10.8 square meters constructed on the above ground to the non-indicted 19771 complex 47.1 (New lot 649) to the non-indicted 2's first sale of the building site and the non-indicted 2's first sale of the building site and the non-indicted 2's first sale of the building site to the non-indicted 3's third party's 9-771 complex 17.8 square meters of the above 1974 complex 1977.8 square meters of the above building site and the non-indicted 2's first sale of the building site and the non-indicted 1681848.

However, in the case of the crime of breach of trust under Article 355 (2) of the Criminal Act, even if a juristic person becomes the subject of the obligation to manage another's business, it shall not be the subject of the obligation under the private law, but it shall not be realized by the representative decision-making by the representative body, which is the natural person representing the juristic person, and the representative body shall be obligated to perform the business in accordance with the content of the obligation that the juristic person bears. As such, the juristic person cannot be the subject of the crime of breach of trust, and the representative body which is the natural person handling the business on behalf of the juristic person cannot be the subject of the other person cannot be the subject of the crime of breach of trust. Accordingly, since the subject of the obligation to manage another person's business cannot be the basis that the representative body cannot be the subject of the crime of breach of trust in relation to the other person's business, the representative body cannot be the subject of the crime of breach of trust in relation to the other person's business. Thus, it shall be modified by this decision.

Therefore, the judgment of the court below that the facts charged against the defendants did not constitute a crime of breach of trust on the grounds as stated in its holding shall be erroneous in the misapprehension of legal principles as to the person who administers another's business under Article 355 (2) of the Criminal Act, as discussed in the ground of appeal. Therefore, the part of the judgment below's acquittal shall be reversed and remanded to the Suwon District Court Panel Division, which is the court below, to re-examine and determine this part of the case.

Dissenting Opinion of the Supreme Court Justices Jeon Soo-soo

The crime of breach of trust is established when a person who administers another’s business obtains pecuniary advantage or has a third party obtain it by doing so, thereby causing damage to the principal. As such, the principal of the crime of breach of trust is a person who administers another’s business. Since the essence of the crime of breach of trust is that a person who has such status or status as above in statutory or contractual or customary terms violates the duty of trust and good faith to the said person, a person who does not have such status or status is not the subject of the crime of breach of trust. In other words, the crime of breach of trust is an abuse of authority by a person who is authorized to handle another’s business by law or contract, and there is no room to establish the crime of breach of trust unless there is such status or status. This is unique in terms of the elements of the crime of breach of trust.

The majority opinion holds that even if a juristic person becomes the subject of the duty to manage another person's business, it is merely a subject of the duty under the private law and has no criminal capacity, and it cannot be realized by the representative act in accordance with the decision-making by the representative agency, which is a natural person representing the juristic person, and thus, the representative agency has the duty to manage the business in accordance with the duty that the juristic person bears to the other person, but the basis for such theory is weak, and it cannot be recovered by an interpretation that

First of all, a corporation is merely a contractual subject under private law and has no capacity to commit a crime, but it is not possible to establish the crime of breach of trust because the contractual subject under private law becomes the subject of the crime of breach of trust. While the majority opinion points out this point, it is difficult to understand it as a reference whether to separately grasp the contractual subject under private law and the subject of the crime.

It is the same conclusion as punishing a person who is not obligated to commit a crime of breach of trust because of the absence of criminal capacity in a juristic person, and therefore punishing a person who does not commit a violation of duty.The punishment of a representative institution can not be the basis of urban entrance theory, and it is not only to commit a mistake that should be strict in the interpretation and application of penal law.

Of course, the representative body representing a corporation, which is a natural person, has a duty to manage the business in accordance with the content of the duty owed by the corporation to others, does not understand the theoretical composition of the representative body in view of the corporate personality and the intent and capacity of the corporation. However, such interpretation is an expansion of the elements of the crime of breach of trust and the duty to manage the business in accordance with the content of the duty owed by the corporation to others. The expression of the majority opinion is that the duty imposed on the corporation is not directly imposed on the other person, and it is not a duty imposed on the representative body of the corporation, and thus, it is not a breach of the duty to perform it, and thus, constitutes a crime of breach of trust against others.

In particular, it is not necessary to say that the strict interpretation of penal law is required. Even though it is clearly defined that it is not the subject of the breach of trust, that is, the subject of the judicial obligation, which is clearly defined as the person who administers another's business, it would result in punishing a person who has no crime by distortion of the criminal law provisions on breach of trust beyond the scope of expanded interpretation of the elements of the breach of trust.

There is no doubt as to who is not capable of committing an act in breach of trust of a juristic person and who is responsible for and punished for it. Whether the juristic person is not capable of committing an offense or why there is a person who is to be responsible for it and who is to be punished for it?

The purpose of punishment is to correct and not to respond to it. From among property crimes, the purpose of the crime of breach of trust lies in achieving the judicial order, especially in the context of the crime of breach of trust, and its judicial relationship, in principle, cannot be overlooked that it is the basic principle of judicial order. In this regard, the phenomenon of so-called criminalization of so-called civil affairs, which is common sense, is a problem that our legal professionals should be the same, and in this regard, the interpretation like the majority opinion, should be avoided, and the opinion of the previous Supreme Court on the crime of breach of trust should not be changed, considering the ultimate purpose of the law and the gap between the law.

Justices Park So-young (Presiding Justice) Lee So-young (Presiding Justice) Lee So-young (Presiding Justice) Lee So-young, Lee So-young, Kim So-young, Lee So-young, Lee So-young, Lee So-young, Lee Jong-hwan, Kim