[1] The elements for recognizing the intent to breach of trust with respect to the corporate management judgment

[2] The case affirming the judgment below which acquitted the defendant on the ground that the defendant's failure to carry out the mediation plan with more favorable contents does not constitute an act of breach of trust, in case where the defendant, the president of the broadcasting company, presented an unreasonable mediation plan for personal interests and promoted mediation unreasonably, thereby causing losses to the broadcasting company, and was prosecuted for violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Misappropriation)

[1] Articles 355(2) and 356 of the Criminal Act / [2] Articles 355(2) and 356 of the Criminal Act; Article 3(1)1 of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes; Article 325 of the Criminal Procedure Act

[1] Supreme Court Decision 2002Do4229 Decided July 22, 2004 (Gong2004Ha, 1480), Supreme Court Decision 2007Do10415 Decided January 14, 2010, Supreme Court Decision 2009Do1464 Decided October 27, 201 (Gong201Ha, 2483)

Defendant

Prosecutor

Attorneys Cho Gyeong-hee et al.

Seoul High Court Decision 2009No2302 decided October 28, 2010

The appeal is dismissed.

The grounds of appeal are examined.

In order to establish that there was an intentional act in breach of trust against a business operator in relation to a business judgment, it should be recognized that the act was committed under the awareness that the business operator or a third party obtained property benefits and that it would inflict loss on the principal in light of all the circumstances, such as the developments and motive leading up to the business judgment in question, the contents of the business subject to determination, the economic situation faced by the company, and the probability of incurring loss and obtaining profit (see, e.g., Supreme Court Decisions 2002Do4229, Jul. 22, 2004; 2007Do10415, Jan. 14, 2010).

The lower court determined that the Defendant, as the president of the Korea Broadcasting System (hereinafter referred to as the “Corporation”), was not proven to the extent that there was no reasonable doubt that the Defendant caused property damage to the Corporation by presenting unreasonable mediation proposals clearly contrary to the Corporation’s interests for the avoidance of management responsibility through temporary resolution of financial resources using refund money and for personal interests, such as the president’s reappointment of the position of president. Accordingly, the lower court affirmed the first instance judgment that acquitted the Defendant of the primary facts charged in the instant case. Furthermore, in full view of the various circumstances as indicated in its reasoning, including the motive, process, and content of the mediation proposal, the lower court found the Defendant not guilty of the instant preliminary facts charged on the ground that the Defendant failed to carry out a mediation proposal more favorable to the Corporation during the process of coordinating the instant tax litigation, on the grounds that the failure of the Defendant to carry out a mediation plan more favorable to the Corporation does not constitute a breach of trust.

Examining the relevant evidence in light of the reasoning of the judgment below and the aforementioned legal principles, the above judgment of the court below is just and acceptable, and there is no error of law by misunderstanding facts against logical and empirical rules or by misapprehending the legal principles as to the intention of breach of trust, etc., as otherwise alleged in the ground of appeal.

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

Justices Lee Sang-hoon (Presiding Justice)