[1] The meaning of "a person who administers another's business" as the subject of the crime of breach of trust, and the basis of "business" in the crime of occupational breach of

[2] In a case where a company employee removes materials without permission, whether the said materials constitute “major assets for business purpose” to establish a crime of occupational breach of trust (affirmative)

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

[1] Supreme Court Decision 99Do457 delivered on March 14, 2000 (Gong2000Sang, 1005) Supreme Court Decision 2001Do3534 Delivered on June 14, 2002 (Gong2002Ha, 1732) Supreme Court Decision 2002Do758 Delivered on January 10, 2003 (Gong2003Sang, 660) / [2] Supreme Court Decision 2004Do7962 Delivered on July 14, 2005 (Gong2008Ha, 1212), Supreme Court Decision 2009Do3435 Delivered on July 10, 208 (Gong2008Ha, 1212)

Defendant

Defendant

Suwon District Court Decision 2009No3058 Decided February 9, 2010

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

The grounds of appeal are examined.

1. On the first ground for appeal

As the subject of the crime of breach of trust, "a person who administers another's business" means a person who is deemed to have a fiduciary relationship to handle the business in light of the principle of trust and good faith with another person, and does not necessarily need to have the authority to conduct the business in an external relationship with a third person, and it also includes the fact that the basis for the business in the crime of breach of trust is irrelevant to either statutes, contracts, or customs (see, e.g., Supreme Court Decision 2002Do758, Jan. 10, 2003).

According to the facts acknowledged by the court below and the records, the defendant, from August 1, 2004 to April 15, 2007, worked as the chief in charge of management, office management, and design and manufacturing of electrical control devices, etc., in the Samjin Machinery operated by the victim non-indicted 1. The defendant was able to use the non-indicted 1's computer located in the Samjin Machinery Office upon the request of the non-indicted 1 to assist in designing, manufacturing, and follow-up management of the solar machinery electrical control devices, such as the modification of the electrical drawings of solar machinery to be supplied by the non-indicted 1 after retirement from Samjin Machinery. The defendant was able to use the non-indicted 1's computer, and the defendant was able to export it to the Japanese company which was stored on the computers of the non-indicted 1 on April 16, 2007, which included the electrical drawings of PEC program drawings, etc. [attached Form 3, 4, and 23, 2007."

Examining these facts in light of the legal principles as seen earlier, the Defendant is still in a fiduciary relationship in view of the principle of good faith in relation to Nonindicted Party 1 at the time of taking out the files of the above Nos. 3 and 4 as well as the instant photographic file. Therefore, the lower court’s judgment to the same purport is justifiable, and is not erroneous in the misapprehension of legal principles as to “a person who administers another’s business” in the crime of occupational breach of trust, contrary to what is alleged in

2. On the second ground for appeal

A. In order to establish a crime of occupational breach of trust where a company employee removes materials without permission from a competitor company or its own intent to use them for its own interest, even if such materials are not necessary to constitute trade secrets, it cannot be ordinarily obtained without going through a holder because they are not disclosed to many and unspecified persons. The holder of such materials is a considerable time, effort and expenses for the acquisition or development of the materials, and it constitutes a major business asset to the extent that the competitor can benefit from competition through the use of such materials (see, e.g., Supreme Court Decisions 2004Do7962, Jul. 14, 2005; 2008Do3435, Jul. 10, 2008).

B. In light of the aforementioned legal principles and records, the Defendant and Nonindicted Party 2, one of its business partners, prepared start-up business of the same kind of machinery from March 2007, which had been employed by the Defendant from March 207 to April 8, 2007. The Defendant sent file Nos. 5, 6, and 7 of the lower judgment [Attachment] which was stored in Nonindicted Party 1’s computer from March 2, 2007, to their own electronic mail, and transmitted the file and the photograph files of this case to the employees of Nonindicted Party 3, 4, and their respective business information into their own computer, and managed information in a way that they can verify the data necessary for the production and sale of the same type of machinery and equipment, and that there was no need for information from their employees to use the same business information as that of their business partners, and that the PLC program drawings of the above paragraph (3) are no longer than 10 months, and that there was no need for information delivery and sale in accordance with the changed terms and conditions for manufacturing and distribution of electrical products.

On the other hand, the photograph file of this case is stored on the screen of doping machines that applied the tamping system. When the defendant disclosed the photograph file of this case, it can be seen that the tamping machine that applied the tamping system was already manufactured and the screen screen was not hard from the outside, and it could not be seen that Nonindicted Party 1 produced the tamping machine as a file on which he affixes his photograph, or that it could not be said that there was a competitive benefit to the manufacturer and seller of tamping machine by using its photograph material. Thus, it is difficult to view the data on the photograph file of this case as falling under “major business assets” of Nonindicted Party 1.

Nevertheless, solely for the reasons indicated in its holding, the court below erred by misapprehending the legal principles as to “major assets for business purpose” in the crime of occupational breach of trust, and the ground of appeal assigning this error is with merit.

3. Scope of reversal

In this case, there is a ground to reverse only the video files of this case among the facts charged by the court below, but since the above part is related to the remaining part which the court below found guilty and the not guilty part of the court below, the judgment of the court below cannot be exempted from the whole reversal

4. Conclusion

Therefore, without further proceeding to decide on the remaining grounds of appeal, the judgment of the court below is reversed, 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

Justices Lee Sang-hoon (Presiding Justice)