[1] The meaning of property gains acquired by an offender or a third party in the course of occupational breach of trust

[2] In a case where an actor or a third party did not obtain property benefits by an act of breach of trust, whether the crime of breach of trust is established (negative)

[3] The case holding that in a case where a person who performs the business of manufacturing and installing machinery on behalf of the company intentionally fails to perform the duty of manufacturing machinery and thus, the other party received advance payment and insurance proceeds as a result of the rescission of the contract from the guaranteed insurance company, the payment of the above insurance proceeds cannot be readily concluded that the other party acquired property

[1] The crime of occupational breach of trust is established when a person who administers another's business obtains pecuniary advantage or causes a third party to obtain such benefit in violation of his/her duty, thereby causing loss to the principal. Here, "in case where the principal causes loss to his/her property status," that is, where the principal causes loss to his/her property status, that is, where the principal causes loss to his/her entire property value. This legal principle also applies to any pecuniary benefit acquired by a person who administers

[2] Since the crime of occupational breach of trust requires an actor to acquire property benefits by himself/herself or to have a third party acquire property benefits due to an act of breach of trust in addition to incurring property damage to the principal, if the actor or the third party has not acquired property benefits, the crime of breach of trust cannot be established.

[3] The case holding that in a case where a person who performs the business of manufacturing and installing machinery on behalf of the company intentionally fails to perform the duty of manufacturing machinery, and thus the other party receives advance payment and insurance proceeds as a result of the rescission of the contract, the other party cannot be readily deemed to have acquired property benefits solely on the receipt of the above insurance proceeds

[1] Articles 355(2) and 356 of the Criminal Act / [2] Articles 355(2) and 356 of the Criminal Act / [3] Articles 355(2) and 356 of the Criminal Act

[1] Supreme Court Decision 80Do2934 delivered on June 23, 1981 (Gong1981, 14109) Supreme Court Decision 2004Do7053 Delivered on April 15, 2005 (Gong2005Sang, 791) / [2] Supreme Court Decision 81Do2601 Delivered on February 23, 1982 (Gong1982, 398), Supreme Court Decision 2006Do3145 Delivered on July 27, 2006 (Gong2006Ha, 1587)

Defendant

Defendant

Incheon District Court Decision 2005No1017 Decided August 18, 2005

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

We examine the grounds of appeal.

1. The summary of the facts charged in this case is as follows.

On June 19, 198, the Defendant, as the representative director of the victim company, entered into a contract for the production, installation, etc. of a consortium, which is the Incheon International Airport Postal (hereinafter “instant contract”). Since the Defendant was exclusively responsible for the manufacture and sale of such measuring instruments, the Defendant performed duties on behalf of the victim company on behalf of the representative director.

By October 15, 1999, the victim company purchased a consortium 38 years of age from October 15, 199, which is the first payment period of the contract of this case, and supplied it directly to the external business of the victim company, and guaranteed the victim company's obligation to pay the purchase price of the contract to the external business entity. Therefore, the defendant entered into the contract with the external business entity and faithfully sent a copy of the contract to the external business entity for the purpose of faithfully performing the contract of this case, thereby making it impossible for the victim company not to suffer damage due to the termination of the contract of this case due to delay in the payment period. Nevertheless, the defendant violated such duty and failed to perform the agreement for the implementation of the contract of this case on October 16, 199.

Accordingly, around that time, 103,504,420 won (in advance at the time of the contract of this case, KRW 95,150,000 was paid) as the guaranteed insurance in relation to the contract of this case from the Seoul Guarantee Insurance Co., Ltd., by receiving KRW 95,150,00 as the prepaid insurance money, 198,654,420 in total, and 236,193,362 won was paid to the Seoul Guarantee Insurance Co., Ltd., thereby causing considerable damage to the victim company.

2. Determination:

The court below determined that the defendant, who is in exclusive charge of the execution of the contract of this case for the victim company, intentionally violated his duties and did not perform his duties on the ground of dispute over the management rights of the non-indicted, so that the contract of this case was cancelled. Furthermore, the court below found the defendant guilty as to all of the charges of this case since the defendant's act of breach of trust, 198,654,420 won, which was paid from the Seoul Guarantee Insurance Co., Ltd. for the defendant's act of breach of trust, was paid as restitution and penalty due to the cancellation of contract due to the non-performance of the victim company's breach of trust, but if the defendant actually paid the money in possession of the right to restitution and the right to pay the penalty, and the claim was satisfied, it shall be deemed that the amount of the money was increased in property value of the period. Thus, the 198,654, and 420 won, which was paid by the victim company to Seoul Guarantee Insurance Co., Ltd. under the name of the defendant's property value of the victim company.

Of the judgment of the court below, the part that the defendant is recognized as having performed an act in violation of his duties as a person who administers the business of the victim company is just and acceptable, and there is no error in the misapprehension of legal principles as to a person who administers another's business in breach of trust or in violation of

However, it is difficult to accept the part of the judgment of the court below concerning property interest and damage for the following reasons.

The crime of occupational breach of trust is established when a person who administers another's business obtains pecuniary advantage or has a third party obtain such benefit from an act in violation of his/her duty and thereby causes loss to the principal (Articles 356 and 355 (2) of the Criminal Act). Here, "in cases where a person inflicts economic loss on the principal" refers to cases where a person inflicts a loss on the principal's property status, i.e., losses on the principal's property status (see, e.g., Supreme Court Decisions 80Do2934, Jun. 23, 1981; 2004Do7053, Apr. 15, 2005). Such legal principle should be applied equally to the property interest that a person who administers another's business or a third party acquires.

In addition, the crime of occupational breach of trust requires an actor to acquire property benefits or to have a third party acquire property benefits by his/her act of breach of trust in addition to causing property damage to the principal. Thus, even if the perpetrator or the third party has inflicted damage on the principal, the crime of breach of trust cannot be established unless the actor or the third party has acquired property benefits (see Supreme Court Decisions 81Do2601, Feb. 23, 1982; 2006Do3145, Jul. 27, 2006).

In accordance with the above legal principles, first of all, we examine whether the stegras can be viewed as acquiring property benefits due to the defendant's breach of trust.

In this case, the period of Maposan had the right to rescind the contract of this case due to the defendant's breach of trust, and cancelled the contract, and exercised the right to claim an advance return and the right to claim a penalty against the victim company.

However, advance payment, which was paid by the period of Maposan to the victim company, is part of the advance payment that was made in order for the victim company to smoothly implement the performance under the contract of this case, and cannot be deemed as have been reverted to the victim company in the absence of the contract. Thus, it cannot be deemed that the period of Maposan was cancelled and the advance payment was returned from the victim company, thereby acquiring economic benefits.

In addition, since the penalty of this case is based on the premise of the victim's occurrence of damages due to the non-performance of obligation, it is difficult to readily conclude that the period of liquidation has obtained property benefits corresponding thereto solely on the fact that the period of liquidation was paid with penalty, and further, it can only be deemed that the period of liquidation has obtained property benefits equivalent to the difference between the penalty and the penalty after deducting the actual amount of damages from the penalty, only in special circumstances such as the fact that the period of liquidation was not actually damaged due to the victim's non-performance of obligation or the loss incurred less than the amount of penalty, etc. However, there is a prosecutor who bears the burden of proving that there are special circumstances to deem that the period of liquidation has acquired any property benefits. However, there is no evidence to prove this.

Then, this paper examines the scope of property damage inflicted on the victim company due to breach of trust recognized by the court below.

In this case, the victim company paid KRW 236,193,362 under the name of insurance money and overdue interest to the Seoul Guarantee Insurance Co., Ltd. due to the cancellation of the contract due to the defendant's breach of trust, but this includes the amount paid by the victim company from the Pool machine in relation to the contract of this case.

However, in light of the above nature of advance payment, the victim company cannot be deemed to have suffered property damage due to return of advance payment.

Therefore, the property damage suffered by the victim company due to the defendant's breach of trust will be the amount obtained by deducting the amount paid for the return of advance payment from the above 236,193,362 won (On the other hand, the victim company may be deemed to have suffered damages that could not obtain profits that could have been gained when the contract of this case was properly implemented other than the above damages due to the defendant's breach of trust, but this is not included in the facts charged but cannot be confirmed on the records).

Ultimately, in the instant case, the Defendant’s breach of trust acquired property benefits equivalent to KRW 198,654,420 from the Seoul Guarantee Insurance Co., Ltd., and the victim company cannot be deemed to have suffered property damage equivalent to KRW 236,193,362 paid by the Seoul Guarantee Insurance Co., Ltd., but the lower court determined otherwise and convicted all the facts charged. In so doing, the lower court erred by misapprehending the legal doctrine on breach of trust, thereby adversely affecting the conclusion of the judgment.

The ground of appeal pointing this out is with merit.

3. Conclusion

Therefore, 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 on the bench.

Justices Shin Hyun-chul (Presiding Justice)