[1] The meaning of "a person who administers another's business" in the crime of breach of trust

[2] In a case where Gap corporation and Eul corporation, the representative director of Eul corporation, who entered into a franchise store management agency contract, etc. with Gap corporation and performed the franchise store management business, was prosecuted for occupational breach of trust on the ground that Gap corporation's franchise store was arbitrarily converted into another competitor's franchise store in violation of its duties and caused property damage to Gap corporation, the case holding that the judgment below which acquitted Gap corporation since the defendant was in the position of "a person who administers other's business" as an agent,

[1] In the crime of breach of trust, “a person who administers another’s business” refers to a person in a position which serves as a typical and fundamental substance of a fiduciary relationship to manage another’s business in accordance with the principle of trust and good faith, and to protect and manage another’s property interest, etc. based on the relationship with the other person. However, even if the handling of such business is not necessary to protect and manage only the interests of the other person, and even if there are also the nature to promote one’s own interests, where the nature of the business for the other person goes beyond the incidental and surrounding meaning, it constitutes “a person who administers another’s business.” Therefore, even if the handling of the business entrusted by a delegated person, etc. under a contract such as delegation is intended to obtain the agreed remuneration, etc., even if transferring the registration of ownership to another person at a certain stage is to obtain the price, etc. or to complete one’s transaction, the handling of such business is in a position to protect and manage his/her property interests in a fiduciary

[2] In a case where the Defendant, as the agent of the Plaintiff, was indicted of occupational breach of trust on the ground that the Defendant, who was the representative director of the Plaintiff, who entered into a credit card company, merchant management agency contract, agency contract, terminal free lease contract, sales incentive contract with the Defendant, and conducts the sales and installation of card terminals, and the management of the franchise store, etc., as the agent of the Plaintiff, was charged for occupational breach of trust on the ground that the Defendant, in violation of his duties, arbitrarily converted the existing member store of the Company A into the other customer store in competition with the Company, thereby causing property damage to the Plaintiff, the case holding that the lower court erred in the misapprehension of legal principles on the ground that the Plaintiff’s member store owned by the Company A had property value directly related to the profit of the Company A, and thereby soliciting, maintaining, and managing the franchise store on behalf of the Defendant was originally entrusted to the Defendant based on the personal trust relationship with the Defendant, and merely did it constitute an unlawful management of the Defendant’s own business, on the ground that the Defendant did not perform any duty under the contract and performed any other duties on behalf of the Defendant Company A.

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

[1] Supreme Court Decision 91Do262 Decided March 27, 1991 (Gong1991, 1323), Supreme Court Decision 2004Do6890 Decided March 25, 2005, Supreme Court en banc Decision 2007Do7060 Decided June 26, 2008, Supreme Court Decision 2008Do10479 Decided January 20, 201 (Gong201Sang, 482)

Defendant

Prosecutor

Suwon District Court Decision 2008No1883 Decided February 19, 2010

The part of the judgment of the court below concerning occupational breach of trust among the acquitted part of the judgment below is reversed, and that part of the case is remanded to the Jung-gu District Court Panel Division. The prosecutor's remaining appeal is dismissed.

We examine the grounds of appeal.

1. As to the ground of appeal on occupational breach of trust

A. The summary of the facts charged is as follows.

The Defendant is the representative director of Nonindicted Company 1, the agent of the victim company, and actually operating the same. On March 31, 2004, the Defendant entered into a contract with Nonindicted Company 1 and Nonindicted Company 1, which is a credit card company (hereinafter referred to as “user”) for the management agency of credit card terminals (hereinafter referred to as “credit card terminals”) with each credit card franchise store (hereinafter referred to as “member store”) for the victim company, and managed each member store after entering into an automatic transfer contract with Nonindicted Company 1, an agent of the victim company. Unless there are special circumstances such as the victim company’s request for replacement of the member store, the Defendant breached his duty of duty to arbitrarily convert the existing member store from 60 to 100, which is the victim company’s name, so that Nonindicted Company 1, the vice president of Nonindicted Company 1, and the 205 6 6 6 6 6 6 6 2 2 2 2 2 2 2 2 2 2 205 2 2 2 3 2 2 2 3 3 2 2 2 2 3 2 2 2 2 2 2 2 2 2 2 200.

B. On the grounds delineated below, the court below judged that the defendant cannot be seen as a person who administers another's business in relation to the victim company, and found the defendant not guilty of this part of the facts charged.

In other words, it is reasonable to view that the defendant's act of soliciting member stores using the credit card terminal of the victim company through his own business in the course of the franchise store management agency business is the defendant's business to obtain more fees from the victim company, and that the relationship between the victim company and the defendant does not seem to have an essential content in protecting or managing the property of the victim company based on mutual trust relationship between the victim company and the defendant. Therefore, even if the defendant bears a duty not to act as an agent or broker for the same competitive company, it is merely a contractual obligation that does not sell or provide another like company during the contract period with the victim company. As long as the business of soliciting, maintaining, and managing the franchise store is the defendant's own business, even if the franchise store managed by the defendant is converted to another broadband company and caused considerable damage to the victim company as a result of the fact that the franchisee's act was done, it shall not be deemed that the defendant is a person who administers another's

C. However, we cannot accept the above judgment of the court below.

(1) In the crime of breach of trust, “a person who administers another’s business” refers to a person in a position which serves as a typical and fundamental substance of a fiduciary relationship to manage another’s business, in light of the principle of trust and good faith, and to protect and manage another’s property interest, etc., based on the relationship with the other person. However, even if the handling of such business is not necessary to protect and manage only the interests of the other person, and even if the nature of promoting one’s own interest also exists, where the nature of the business for the other person goes beyond the incidental and surrounding meaning, it constitutes “a person who administers another’s business.” Therefore, even if the handling of the business entrusted by a delegated person, etc. under a contract such as delegation is intended to obtain the agreed remuneration, etc., even if transferring the ownership registration to the other person at a certain stage based on a contract such as sale or purchase is for completing one’s transaction, the handling of such business is in a position to protect and manage the other party’s property interest (see, e.g., Supreme Court Decision 91Do262684, Mar.

(2) Review of the reasoning of the lower judgment and the evidence duly admitted by the lower court reveals the following facts.

① A victim company provided credit inquiry services and automatic transfer services using credit sales proceeds using card terminals, and thereby, receives fixed fees from a credit card company, and the Defendant is actually operating as the representative director of Nonindicted Company 1, the Gyeonggi-do branch agent of the victim company.

② From around 2002, Nonindicted Co. 1 entered into a franchise store management agency contract, agency contract, terminal lease contract, sales incentive contract, and sales incentive contract with the victim company as the agent of the victim company. The victim company and Nonindicted Co. 1 renewed the above contract on March 31, 2004 (hereinafter “instant franchise store management agency contract, etc.”).

③ According to the instant franchise store management agency contract, etc., Nonindicted Co. 1, in the business area, is required to recruit franchise stores for the victim company, sell, install, maintain and repair the card terminals of the victim company to the franchise store. Furthermore, it is required to collect sales slips from the franchise store using the card terminals of the victim company and verify them and to provide the victim company with the duty to purchase sales slips to transfer them to the victim company after computer inputs, and Nonindicted Co. 1 actually performed these tasks.

④ According to the instant franchise store management agency contract, etc., Nonindicted Co. 1 is also obligated to make efforts to increase demand for the card terminals and services of the victim company, expand markets, and improve the image and reliability of the victim company. Furthermore, the victim company is unable to sell or provide services of the same or similar card terminals as those sold or leased by the victim company, and shall not act as an agent or intermediary for the business of the company in competition with the victim company. In addition, the contract for the franchise store may not be terminated at will, only when the victim company recognizes, and the contract for the franchise store may be terminated only when the information of the franchise store is changed or when the franchise store is deemed to be illegal or defective franchise store. Meanwhile, if a civil petition is filed from the franchise store, Nonindicted Co. 1 is promptly treated the relevant civil petition, and is obligated to solve the defect in sales preferentially.

⑤ Meanwhile, in order to support the business of Nonindicted Co. 1, the victim company leased a card terminal without compensation to Nonindicted Co. 1, and also paid a sales incentive of KRW 41 million to Nonindicted Co. 1 on two occasions in accordance with the sales incentive contract in order to encourage the sale or business of Nonindicted Co. 1.

(6) On December 2004, the ○○○○○○○○○ established in the name of Nonindicted Co. 2, the vice president of Nonindicted Co. 1 Company, was an employee from January 2005 to Nonindicted Co. 5 and 6 who had been employed by Nonindicted Co. 1 Company, and mainly operated its business against the existing affiliated stores of Nonindicted Co. 1 Company from January 2005 to May 2005, and the 139 affiliated stores of Nonindicted Co. 1 were registered as the affiliated stores of Nonindicted Co. 3 (English name omitted) or Nonindicted Co. 4 (English name omitted) in competition with the victim Company through ○○○○○○. The victim was aware of this phenomenon of the withdrawal of such affiliated stores, on June 9, 2005, notified Nonindicted Co. 1 of the cancellation of the agency contract on the ground of business performance low due to the prohibition of the same type of business and the secession of the affiliated stores, etc.

(7) A victim company shall incur property loss resulting from the renunciation of the aforementioned franchise store, 67 won per case at the time of approval for a credit card inquiry or credit card transaction, and 12 won per case at the time of automatic transfer service.

(3) According to the above facts, since a member store owned by the victim company has property value directly related to the profit of the victim company, and the defendant's act of soliciting, maintaining, and managing a member store on behalf of the victim company is based on the fact that the defendant is entrusted to the defendant based on the personal trust relationship with the defendant as the affairs of the victim company, and it is reasonable to view that the principal contents of the above management affairs of the victim company are not limited to the affairs of the defendant's own, but to protect or manage the profit of the victim company. It does not change because the above management affairs of the victim company have the nature of the defendant's own affairs in order to perform the defendant's contractual duties and to acquire more fees from the victim company. Ultimately, the defendant is in the position of "a person who administers another's business" on behalf of the victim company in accordance with the fiduciary relationship with the victim company, and that the defendant's act of arbitrarily converting the existing member store to another competitor who is the competitor company of the victim company and causing damage to the victim company constitutes a violation of the duty of duty

Nevertheless, the court below held that the defendant cannot be held liable for the crime of occupational breach of trust on the ground that his relation with the victim company cannot be deemed to be a person who administers his business. In this context, the court below erred by misapprehending the legal principles on "a person who administers another's business" in the crime of occupational breach of trust, thereby affecting the conclusion of the judgment. The ground of appeal assigning

2. As to the ground of appeal on defamation

According to the reasoning of the judgment below, the court below affirmed the judgment of the court of first instance that acquitted the defendant on the ground that it is difficult to readily conclude that the contents of the facts charged of defamation in the written appeal are false, and it is difficult to view that the defendant had the intention to defame the defendant at the time, and there is no proof of the facts charged. Examining the records in light of the relevant legal principles, the above judgment of the court below is just, and there

3. Conclusion

Therefore, the part concerning occupational breach of trust among the non-guilty portion of the judgment below is reversed, and that part of the case is remanded to the court below for a new trial and determination, and the prosecutor's remaining appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Yong-deok (Presiding Justice)