[1] Whether the crime of occupational breach of trust is established where an actor or a third party did not obtain property benefits (negative)

[2] The case holding that in the case where the so-called "dumping Sales" which sells products at a price lower than the price designated by the company at a discount rate higher than that of the company without the company's consent, where the products are sold to the third party in accordance with the market transaction price, the transaction partner cannot be deemed to have acquired financial profits

[1] The crime of occupational breach of trust requires an actor to acquire property benefits by himself/herself or to have a third party acquire property benefits by an act of occupational breach of trust in addition to causing property damage to the principal. Thus, even if the perpetrator or the third party has suffered property benefits, the crime of occupational breach of trust cannot be established unless the actor or the third party has acquired

[2] The case holding that the issue of whether the defendant, without the consent of the victimized company, has property interest in the third party to the so-called "dumping Sales" which sells the product at a price lower than the price designated by the injured company at a lower rate than that of the company, should be judged in an economic point of view, and that even if the victimized company violated the limitation on the discount rate set by the injured company, if the damaged company sold the product at the trading price in the market, the difference between the product price at the discount rate and the product price at the discount rate applied at the time of actual sale cannot be deemed as property

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

[1] Supreme Court Decision 2005Do6439 Decided July 26, 2007 (Gong2007Ha, 1413), Supreme Court Decision 2008Do3792 Decided June 25, 2009 (Gong2009Ha, 1249)

Defendant

Defendant

Attorney Lee Dong-sik

Busan District Court Decision 2006No3334 Decided March 28, 2007

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

The grounds of appeal by the defendant and his defense counsel are also examined.

1. As to occupational breach of trust

Since the crime of occupational breach of trust requires an actor to acquire property benefits by himself/herself or to have a third party acquire property benefits due to an act of occupational breach of trust in addition to incurring property damage on the principal, even if the actor or the third party has suffered property benefits, the crime of occupational breach of trust cannot be established unless the actor or the third party has acquired property benefits (see Supreme Court Decision 2008Do3792, Jun. 25, 2009, etc.).

According to the reasoning of the judgment of the court below and the judgment of the court of first instance maintained by the court below, the court below held that since the so-called dumping sales, which sells products at a price lower than the price designated by the company at which the defendant applied a discount rate higher than the designated discount rate at its own discretion without the consent of the victimized company, the defendant acquired a total of 23,712,410 won equivalent to the difference, and suffered property loss equivalent to the difference, the crime of occupational breach of trust is established.

However, the issue of whether the dumping sale of this case has economic benefits to the third party, which is the third party, should be judged from an economic point of view. Even if the defendant violated the limitation on the discount rate set by the injured company, if the goods were sold at the prices traded in the market, the difference between the product price at the designated discount rate and the product price at the discount rate applied at the time of actual sale cannot be deemed as the financial benefits that the transaction party

Therefore, the lower court should have determined whether a third party’s transaction partner has acquired economic benefits by purchasing products at a price lower than that traded in the market due to such sales act by the Defendant. However, the lower court determined that the difference between the product price according to the discount rate set by the victimized company and the sales price at which the higher discount rate was applied is the financial benefits of the transaction partner. In so doing, the lower court did not exhaust all necessary deliberations on whether the third party’s transaction partner acquired economic benefits in the crime of occupational breach of trust, or erred by misapprehending the legal doctrine on the property benefits of the third party in the crime of occupational breach of trust, which affected the conclusion of the judgment.

2. As to occupational embezzlement

As to each of the facts charged in the occupational embezzlement of this case, the court below held that since the defendant did not deposit the sales price of the damaged company's goods in the business custody in accordance with the purpose of the collection money and deposited and used them in the personal account book of the defendant, the crime of occupational embezzlement is established, and even if the interpreter used the money for the purpose of preparing the sales price in the virtual account or collecting the inventory of the goods shortageed due to the shortage of sales that exceeded the designated discount rate, it is merely an ex post facto circumstance as to the use of the embezzlement. In light of the records, the court below's findings of fact and judgment are just and there is no error in the misapprehension of legal principles as to the establishment of the crime of occupational embezzlement. This part of the argument is without merit.

3. Conclusion

Therefore, the judgment of the court below is reversed (the whole judgment of the court below is reversed, since a single sentence is imposed on all concurrent crimes under the former part of Article 37 of the Criminal Act as to all concurrent crimes), and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Hong-hoon (Presiding Justice)