2018Do14365 Occupational Breach of Trust

Defendant

Prosecutor

Law Firm Dodam

[Defendant-Appellant]

Seoul Eastern District Court Decision 2018No332 Decided August 23, 2018

June 24, 2021

The judgment below is reversed, and the case is remanded to the Seoul Eastern District Court.

The grounds of appeal are examined.

1. Summary of the facts charged and the judgment of the court below

A. The summary of the facts charged of the instant case is that the Defendant, as the representative director of the transportation company, including Nonindicted Co., Ltd., was responsible for the management of the transit vehicles under the branch entry contract with the victims who are the branch owners, but from January 14, 2015 to November 24, 2015, the Defendant arbitrarily created each of the instant buses, which are vehicles for the victims, on three occasions without the victims’ consent, and obtained financial gains by obtaining a total of KRW 180 million loans, and suffered financial losses equivalent to the same amount.

B. The lower court reversed the first instance judgment convicting the instant facts charged and acquitted the Defendant on the following grounds.

1) It is reasonable to view that, in cases where a land entry contract is entered into between a passenger transport business operator and a land entry company which is a passenger transport business operator, a passenger transport business operator exists within and outside of the passenger transport business operator, the land entry company’s ownership belongs to the land entry company. Therefore, it is difficult to view that a land entry company’s representative director is liable for criminal liability immediately in relation to the land entry company, on the ground that the land entry company’s representative director disposed of

2) However, in special circumstances, where a local government-invested company and a local government-invested company agreed to reserve the ownership of the local government-invested vehicle to the local government-invested company, or the local government-invested company agreed not to conduct any act such as sale and purchase of, or mortgage on, the local government-invested vehicle, or where the local government-invested company has a specific obligation to return the local government-invested vehicle due to the termination of the local government-invested contract, the local government-invested company may bear criminal liability in relation to the local government-invested vehicle if the representative director of the local government-invested company conducted a disposition on the part of the local government-invested vehicle.

3) The evidence presented by the prosecutor alone is insufficient to acknowledge such special circumstances in the instant case where the specific content of the admission contract is not known due to the failure to prepare the entry contract. As such, the instant facts charged constitute a case where there is no proof of crime.

2. Judgment of the Supreme Court

The lower court’s determination is difficult to accept for the following reasons.

A. 1) Since the crime of breach of trust is established when a person who administers another’s business obtains pecuniary advantage or causes damage to another person who is the principal agent of the business by having another person acquire such pecuniary advantage through an act in violation of one’s duty, the principal agent of the crime must be in a position to deal with another’s business. Here, “a person who administers another’s business” should be in a position to deal with another’s business. In order to be a “a person who administers another’s business,” the principal agent must be in a position to protect or manage another’s property based on a fiduciary relationship, such as a case where the principal’s typical and essential content of the business concerning the management of another person’s property is performed for the whole or a part of another person’s business, beyond the conflict of interest in an ordinary contract. Under an ordinary contractual relationship in a separation relationship between interests and interests, the principal obtains the benefit of satisfaction of rights or the realization of claims through a faithful performance of the obligor’s duty to protect or take account of the other party’s property (see, e.g., Supreme Court en banc Decision 2007Do1794.

2) The so-called access system refers to a transportation business in which each borrower runs a business on his/her own management and account and pays rent to a transportation business entity, under a contract entered into between a transportation business entity holding a license for a motor vehicle transportation business and a borrower who actually owns a motor vehicle, externally registered the motor vehicle under the name of the transportation business entity and vests it in the transportation business entity, and externally, on his/her own account, the borrower runs a business on his/her own management and account (see, e.g., Supreme Court Decisions 2003Do3073, Sept. 2, 2003; 2009Do5

Therefore, in a case where a local owner company entrusts a local owner company with the ownership registration title of a motor vehicle and delegates a business related to the registration and maintenance of a motor vehicle for the transport business to the local owner company by concluding a land entry contract with the local owner company for the motor vehicle in which the local owner company actually owns or has the authority to dispose of the motor vehicle, barring special circumstances, the local owner company is in the position of "a person who administers another's business" in relation to the local owner company's actual property, which is the real property of the local owner company and administers the property affairs with certain authority, barring special circumstances. The typical and fundamental substance of the relationship between the parties is to protect or manage another's property based on the trust relationship between them going beyond the conflict of interest in the ordinary contract.

B. The following facts are acknowledged according to the reasoning of the lower judgment and the evidence duly admitted.

1) The victims agreed to purchase each of the instant buses by bearing the full purchase price for each of the instant buses around 2013 and 2014, and to leave each of the instant buses between the Defendant and the Defendant as a transportation company operated by the Defendant and to pay the Defendant rent.

2) Accordingly, the Defendant respectively registered each of the instant buses in the name of the transportation company it operated from January 21, 2013 to June 27, 2014.

3) The victims paid KRW 200,000 per month to the Defendant under the pretext of land entry fees for each bus of this case, and the Defendant maintained the registration of each bus of this case under the name of the transportation company operated by himself, and conducted affairs such as administrative fines, taxes, insurance premiums, etc., by notifying the victims thereof, and receiving payment on behalf of the victims.

4) The victims independently operated and managed each of the instant buses without receiving instructions from the Defendant to operate and operate vehicles, etc., and run their own transport business.

5) From January 14, 2015 to November 24, 2015, the Defendant established at will each of the instant mortgages on each of the instant buses without the consent of the victims three times in total, as shown in the list of crimes in the attached Table of the lower judgment, from January 14, 2015 to November 24, 2015.

C. Examining these facts in light of the legal principles as seen earlier, even if the victims and the defendant did not prepare a provisional contract, the victims are sufficiently recognized that they entered into a provisional contract with the defendant's branch company on each of the instant buses owned by them to entrust the registration and maintenance-related affairs to the defendant's branch company. Therefore, since the typical and fundamental performance of the provisional contract entered into by the defendant and the victims are recognized to be an agent for the management of the property of the land owner, the defendant, who is an operator of the branch company, is in the position of "a person who administers another's business" in relation to the victims who are the land owner, and the legal ownership of the land to carry out the provisional contract is entrusted to the branch company cannot be grounds for denying this. Furthermore, in light of the basic contents of the general contract entered into, it is reasonable to view that the branch office operator of each of the instant victims did not arbitrarily dispose of the land owner's actual property or bear the obligation of the victim to establish a mortgage on the property of each of the instant victims without their consent.

D. Nevertheless, the lower court found the Defendant not guilty on the facts charged of this case on the grounds that there was no proof of crime, and erred by misapprehending the legal doctrine on the establishment of breach of trust and failing to exhaust all necessary deliberations, thereby adversely affecting the conclusion of the judgment. The Prosecutor’s ground of appeal

3. Conclusion

Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Dong-won

Justices Cho Jae-chul et al.

Justices Min You-sook

Justices Yang Tae-sung