[1] The meaning of "a person who administers another's business" as the subject of the crime of taking property in breach of trust, and the ground for a fiduciary relationship

[2] In a case where Defendants, the representative of the regional trucking transport association, were indicted for embezzlement by receiving money from Gap to the effect that they support themselves in an election of the president of the Korean trucking transport association, the case affirming the judgment below holding that the Defendants’ exercise of authority is the conduct of business of the regional trucking transport association, which is another person

[1] The crime of taking property in breach of trust under Article 357 (1) of the Criminal Code is established when a person who administers another's business in exchange for an illegal solicitation in connection with his/her duties acquires property or pecuniary benefits. The "person who administers another's business" as the subject of taking property in breach of trust refers to a person who is acknowledged to have a fiduciary relationship to handle the business in accordance with the principle of trust and good faith in the internal relationship with another person, and does not necessarily require that a person has a right to conduct the business in an external relationship with a third party. In addition, it does not require that the business is a comprehensive entrusted business, and it may also arise through the basis of the business process, namely

[2] In a case where Defendants, the representative of City/Do Trucking Transport Business Association (hereinafter “Local Association”) were indicted for taking charge of taking charge of breach of trust by receiving money from Gap to the effect that they support themselves in an election of the president of the Korea Trucking Transport Business Association (hereinafter “Federation”), the case holding that the exercise of authority by the representatives of each regional association, as a member of the general meeting of the Federation, should be deemed to be the conduct of business affairs of the regional association, not the conduct of business affairs of another person, in accordance with Article 33(1), (2), (9), and Article 35(1) of the former Trucking Transport Business Act (amended by Act No. 8852 of Feb. 29, 2008) and the articles of association of each regional association, etc.

[1] Article 357 (1) of the Criminal Code / [2] Article 357 (1) of the Criminal Code, Article 33 (1), (2), (9) of the former Trucking Transport Business Act (amended by Act No. 8852 of Feb. 29, 2008) (see current Article 48 (1), (2), and (9)), and Article 35 (1) (see current Article 50 (1)) of the Criminal Code

[1] Supreme Court Decision 2002Do6834 Decided February 26, 2003 (Gong2003Sang, 950) Supreme Court Decision 2004Do491 Decided May 12, 2006, Supreme Court Decision 2007Do3096 Decided June 29, 2007

Defendant 1 and two others

Defendants

Law Firm LLC et al. and two others

Busan High Court Decision 2008No986 decided June 10, 2009

All appeals are dismissed.

The grounds of appeal are examined.

1. As to the Defendants’ grounds of appeal

A. As to the violation of the principle of free evaluation of evidence

According to the reasoning of the judgment below, after compiling the adopted evidence, the court below maintained the first instance court's measure which found the defendant guilty of the facts charged of this case, and examining the evidence duly adopted by the court below and the first instance court in light of the records, the judgment below is just and acceptable, and there is no violation of law of free evaluation of evidence in violation of logical and empirical rules as otherwise alleged in the ground of appeal.

B. As to the misapprehension of legal principles as to another person's business

(1) The crime of taking property in breach of trust under Article 357 (1) of the Criminal Act is established when a person who administers another person's business obtains property or pecuniary benefits in exchange for an illegal solicitation in connection with his/her duties. The person who administers another person's business as the principal of the crime of taking property in breach of trust refers to a person who is acknowledged to have a fiduciary relationship to handle the business in accordance with the principle of trust and good faith in an internal relationship with another person, and does not necessarily require that a person has a right to the business in an external relationship with a third person, and does not require that the business should be comprehensively entrusted, and the ground for taking property in breach of trust, i.e., the ground for taking property in breach of trust, legal act, custom, or business management, may arise (see Supreme Court Decision 2002Do6834, Feb. 2

(2) According to the relevant statutes and the reasoning of the judgment of the first instance court cited by the lower court, the provisions of the statutes and the articles of incorporation concerning the Freight Trucking Association are as follows.

(A) Article 33 of the former Trucking Transport Business Act (amended by Act No. 8852 of Feb. 29, 2008; hereinafter “former Act”) provides that “transport business operators may establish an association by type of trucking transport business or by City/Do with authorization from the Minister of Construction and Transportation in order to promote the sound development of trucking transport business and the common interests of trucking transport business operators (Paragraph (1)), the Association shall be a corporation (Paragraph (2) and the Association shall apply mutatis mutandis to the Association (Paragraph (9)), except as otherwise provided for in this Act.” Article 35(1) of the former Act provides that “The association composed of trucking business operators may establish a federation as prescribed by the Ordinance of the Ministry of Construction and Transportation in order to achieve their common objectives, and the association composed of trucking business operators shall be a member of the relevant federation.”

(B) Meanwhile, the articles of association of the National Freight Trucking Association (hereinafter “Federation”) provides that “the branches of the Association shall be members of the Trucking Transport Business Association of Seoul Special Metropolitan City, Metropolitan City and each Do (hereinafter “Local Association”) (Article 7). If a member fails to pay membership fees for at least three months, the exercise of voting rights and right to speak at a general meeting may be suspended (Article 10(1) and may be suspended (Article 10(2)). The plenary session shall be comprised of the representatives of the president and each local association (Article 17). The appointment of an officer shall undergo a resolution of the general meeting (Article 19). A member shall be entitled to exercise voting rights at a general meeting (Article 21).” The articles of association of the local association shall be “the appointment of the president and vice-president of the Association as its representative from among the members of the general meeting (Article 12(2) of the Articles of association of the Busan Metropolitan City Regional Association), and the president shall be the chairman of each meeting on behalf of the Association.”

(3) According to the pertinent Acts and subordinate statutes, the provisions of the articles of association of a federation and a regional association, it is evident that the members of a federation are regional associations that are juristic persons. As such, the voting rights of the general meeting of a federation that determines the intent of such members pursuant to a collective decision-making method shall also be deemed to belong to each regional association that is a member (see Articles 10 and 10 (1), (2), and 21 of the articles of association of a federation premised on the existence of each regional association). In addition, Article 17 of the articles of association of a federation stipulates the members of a general meeting as the representative of each regional association in accordance with the articles of association of a regional association (see, e.g., Articles 14, 14, etc. of the articles of association of a regional association) only to the effect that the representative of a regional association, who is an executing body, is a member of a

Ultimately, the exercise of voting rights or voting rights to elect the president by the representatives of local associations at the general assembly of the federation is merely an exercise of their authority as an executing agency of local associations, a member of each federation. Such exercise of authority is not a handling of one’s own affairs, but a handling of affairs of local associations, a third party.

Although there is no inappropriate part in the reasoning of the judgment below, the conclusion of the court below that the defendants, the representative of the regional association, exercise voting rights or voting rights at the general meeting of the federation manage another's business is justifiable, and it is not erroneous in the misapprehension of legal principles as to other person's business in the crime of taking property in breach of trust, as otherwise alleged in the ground of appeal. The Supreme Court precedents pointed out in the ground of appeal are different from this case, and it is inappropriate to invoke this case

2. As to Defendant 1’s ground of appeal

The court may, within the scope consistent with the facts charged, recognize facts constituting a crime different from the facts charged as stated in the indictment ex officio, even if the indictment has not been modified, in case where it is deemed that there is no concern that a substantial disadvantage may be caused to the defendant’s exercise of his right to defense in light of the progress of the trial within the extent consistent with the facts charged (see Supreme Court Decision 2005Do6433, Mar

In the case of this case, by comparing the facts charged by the first instance court with the defendant 1 in light of the records, there is no difference in basic facts as to the date and place of the crime, the person who received the loss in breach of trust, the person who received the loss in breach of trust, the contents of solicitation, and the amount of property acquisition. The first instance court merely recognized the degree of the involvement of the non-indicted in accordance with the employment evidence. In the same purport, the judgment of the court below that the above measures of the first instance court within the scope of the identity of the facts charged, which are within the scope of the facts charged, are not likely to seriously disadvantage the defendant 1's exercise of defense right is justifiable, and there is no violation of law

3. Conclusion

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

Justices Lee In-bok (Presiding Justice)