Requirements for recognition as "business management of another person" in breach of trust

Since the crime of breach of trust is established when a person who administers another’s business obtains pecuniary benefits by an unlawful act of breach of trust and causes damage to another person who is the subject of the business, the subject of the crime must be the person who administers another’s business. To be recognized as “the conduct of another’s business,” the subject of the crime must be the case where the whole or part of another’s business concerning the management of another’s property is performed for another person and cooperate in the act of preserving another’s property. The essential contents of the two parties’ relationship should be to protect and manage another’s property based on a fiduciary relationship, which goes beyond the duty under a simple fiduciary relationship among them. If the business is not a person’s own business, but is a person who administers another’s business, even if

Article 355(2) of the Criminal Act

Supreme Court en banc Decision 2008Do11722 Decided February 26, 2009 (Gong2009Sang, 401) Supreme Court en banc Decision 2008Do10479 Decided January 20, 201 (Gong201Sang, 482)

Defendant

Prosecutor

Suwon District Court Decision 2010No6315 decided February 15, 2011

The appeal is dismissed.

The grounds of appeal are examined.

1. The crime of breach of trust is established when a person who administers another’s business acquires pecuniary benefits through an unlawful act of breach of trust and causes damage to another person, who is the principal agent of the business, so the principal agent of the crime must be in charge of managing another’s business. To be recognized as “management of another’s business,” it should be limited to a case where the whole or part of another’s business concerning the management of another’s property is performed on behalf of another and cooperation is made in preserving another’s property, and the principal substance of the two parties’ relationship is required to protect and manage another’s property based on a fiduciary relationship, which goes beyond a mere obligation under a fiduciary relationship among them. If the business is not a person’s own business, but a person who administers another’s business is not a person who administers another’s business (see, e.g., Supreme Court Decisions 2008Do11722, Feb. 26, 2009; 2008Do10479, Jan. 20, 2011).

2. According to the reasoning of the judgment below and the evidence duly admitted, ① Nonindicted Co. 1 (hereinafter “Nonindicted Co. 4”) was the trustee of an investment trust established by the former Act on Business of Operating Indirect Investment and Assets (amended by Act No. 8635, Aug. 3, 2007; Act No. 209, Feb. 4, 2009); ② Nonindicted Co. 2, 3, Nonindicted Co. 4 (hereinafter “Nonindicted Co. 4”) and Nonindicted Co. 4 (hereinafter “Nonindicted Co. 4”) did not enter into the instant joint agreement on December 24, 207 to secure the interest payment obligation of Nonindicted Co. 4 (hereinafter “Nonindicted Co. 4”) for each of the instant loans to Nonindicted Co. 4, an insurance company, which was established under the name of Nonindicted Co. 2 (hereinafter “Nonindicted Co. 4”) and to secure its principal and interest obligation of raising funds, and accordingly, the Industrial Bank of Korea loaned KRW 70 billion to Nonindicted Co. 4, a separate loan agreement to the Plaintiff’s loan.

3. We examine the above facts in light of the legal principles as seen earlier.

The relationship between Nonindicted Company 4 and the complainant is not a partnership business relationship that combines the business property and jointly distributes profits and shares losses after running a joint business based on the partnership, but it is not a partnership business relationship that makes a joint distribution of profits and shares losses. Nonindicted Company 4, the debtor regardless of the size of the business income or the failure of Korea-friendly livestock raising business, bears the obligation to pay the principal and interest of the loan to Nonindicted Company 4, the creditor-appellant, and Nonindicted Company 3, the parent company of Nonindicted Company 4, bears the obligation to

Meanwhile, Nonindicted Co. 4 is in the position of a person who administers the business affairs of Nonindicted Co. 4 with respect to the subject matter of security in order to ensure the purpose of the transfer security by the mortgagee company. However, the conclusion and maintenance of the livestock insurance contract with Nonindicted Co. 4 as the insured under the insurance premium burden of Nonindicted Co. 4 appears to have been basically made for Nonindicted Co. 4 in preparation for the risk of damage caused by the closure of the subject matter of the business affairs of the Nonindicted Co. 4. Although the instant joint business agreement agreed to conclude and maintain the said livestock insurance contract, and the said livestock insurance contract is ultimately beneficial to the complainant, the conclusion and maintenance of the said livestock insurance contract cannot be deemed as acting for the complainant company. In light of the insured interest in the subject matter of transfer security, it cannot be deemed that the concluding and maintenance of the said livestock insurance contract has an insurable interest in the subject matter of transfer, and thus, it cannot be deemed that the conclusion and maintenance obligation of the said livestock insurance contract was merely a civil obligation arising from the agreement between the parties, and constitutes a typical and fundamental relationship between the subject matter of security.

Therefore, Nonindicted Co. 4’s conclusion or maintenance of the livestock insurance contract for Korea under the instant business agreement is the performance of a civil obligation against the complainant, and it cannot be said that it is the work of Nonindicted Co. 4, the complainant’s own business place, which is another person.

4. In the same purport, the lower court deemed that Nonindicted Co. 4’s conclusion, management, and maintenance of livestock insurance in order to guarantee the damage caused by the death of Korea-Japan was the affairs of Nonindicted Co. 4, and determined otherwise on the premise that the affairs of Nonindicted Co. 4 were affairs for the company, the complainant, thereby violating his duties by arbitrarily cancelling the above livestock insurance contract, thereby not guilty of the charge of occupational breach of trust, which did not constitute a case where there was no proof of

Therefore, the lower court did not err by misapprehending the legal doctrine on a person who administers another’s business in breach of trust, contrary to what is alleged in the grounds of appeal.

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

Justices Shin Young-chul (Presiding Justice)