[1] The meaning of "act in violation of the duty" in breach of trust

[2] The case holding that the offer of memorials and activity expenses or exclusive drivers to honorary senior generals constitutes an act in violation of the duties of the chief executive officer of the school foundation

[3] In a case where the act of breach of trust was conducted by a resolution of the board of directors of a school foundation with the right to decide on the disposal of property, whether the illegality is excluded (negative)

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

[5] The case recognizing the status of the president of a university operated by a school foundation to handle the affairs of the school foundation's property

[1] The term "act in violation of the duty of "in the course of breach of trust" includes any act in violation of the duty of trust with the principal by failing to perform as a matter of course an act that should not be expected under the provisions of the law, the content of the contract, or the good faith principle, or by doing an act that is expected not to perform as a matter of course.

[2] The case holding that the offer of memorials and activity expenses or exclusive drivers to honorary senior generals constitutes an act in violation of the duties of the chief executive officer of the school foundation

[3] As long as the provision of an honorary senior secretary or an exclusive driver violates his/her duties, it cannot be justified solely on the ground that the university's autonomy is recognized pursuant to Article 31 (4) of the Constitution and the content thereof includes the right to self-determination on personnel affairs, the right to self-determination on financial affairs, and the right to self-determination on financial affairs, and that there was a resolution by the board of directors of the school juristic person having such right.

[4] As a principal agent of breach of trust, "a person who administers another's business" means a person who is acknowledged 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 require the third person to have the power of representation concerning the business. The basis for the business in the crime of breach of trust against a third person is not limited to any of the statutes, contracts, and customs, but includes de facto.

[5] The case holding that where a person who takes overall control of the overall affairs of a university as the president of a university and exercises significant influence on the board of directors of a school juristic person as a director of a school juristic person, is present at the board of directors as a director of the school juristic person, and consents to the resolution of an honorary president, and pays expenses for activities of an honorary president and wages for an exclusive driver as the president of a university according to the resolution of the board of directors, he/she shall be

[1] Article 355 (2) of the Criminal Act / [2] Articles 355 (2) and 356 of the Criminal Act / [3] Articles 355 (2) and 356 of the Criminal Act, Article 31 (4) of the Constitution / [4] Articles 355 (2) and 356 of the Criminal Act / [5] Article 355 (2) of the Criminal Act, Article 356 of the Criminal Act

[1] [4] Supreme Court Decision 9Do457 delivered on March 14, 200 (Gong200Sang, 105) / [1/3] Supreme Court Decision 89Do1417 delivered on June 8, 1990 (Gong1990, 1494) Supreme Court Decision 94Do3013 delivered on December 22, 1995 (Gong1996Sang, 620) 96Do287 delivered on February 10, 198 (Gong198Sang, 811) / [209Do498 delivered on March 12, 1999) / [309Do497 delivered on April 29, 199 (Gong199, 710)

Defendant 1 and one other

Defendants

Attorney Lee Yong-hoon

Daegu District Court Decision 2001No1913 delivered on January 25, 2002

All appeals are dismissed.

1. The term "act in violation of the duty of "in the course of breach of trust" includes any act in violation of the duty of trust with the principal by failing to perform as a matter of course an act that should not be expected under the provisions of the law, the content of the contract, or the good faith principle, or by doing an act that should not naturally be expected to not be done (see Supreme Court Decision 9Do457, Mar. 14, 200) in light of the content and nature of the business to be handled

In light of the records, Defendant 2 served as the president of Nonindicted Incorporated Foundation 1 from around August 198 to Nonindicted Incorporated Foundation 2. From around 10, 198, Defendant 1 took overall charge of duties of the above school foundation since June 11, 198, and exercised considerable influence on the above school foundation’s board of directors by attending the above school foundation’s board of directors as a director of the above school foundation’s board of directors and making decisions on the total amount of duties of the above school foundation. Nonindicted 2 was born in 1909 and was transferred to the president of the above university from around 1961 to the president of the above university. From around 200, Defendant 1 was presumed to have been entrusted to the president of the above university for a long period of time on the ground that the above university’s former president of the 19th anniversary of 1978 et al., Defendant 2, who was working as the president of the above school foundation, and thus, Defendant 1 was presumed to have been given the same honorary position as the president.

In addition, as long as the provision of activities or exclusive drivers to an honorary Secretary constitutes "an act in violation of the duties", it cannot be justified on the ground that the autonomy of a university is recognized pursuant to Article 31(4) of the Constitution, and the content thereof includes autonomy or autonomy decision-making right in personnel affairs, and autonomy decision-making right in finance, and that there was a resolution of the board of directors of a school foundation with such decision-making right (see the above 99Do457 and the above 89Do1417, Jun. 8, 199).

2. To receive exclusive drivers from a school juristic person or to pay wages to an exclusive driver by a school juristic person constitutes "property interests or damages" as provided for in the crime of occupational breach of trust. Thus, the argument in the grounds of appeal on the contrary cannot be accepted.

3. The term "person who administers another's business" as the subject of the crime of breach of trust refers to a person who is acknowledged to have a fiduciary relationship to handle the business in light of the principle of trust and good faith with another person. It does not necessarily require a third party to have the right of representation concerning the business. The basis for the business in the crime of breach of trust is not limited to any of the statutes, contracts, and customs, but also includes de facto (see the above Decision 99Do457).

According to the records, Defendant 1, as the president of a university, takes overall control of the overall duties of the university as well as exercises considerable influence on the board of directors of the above school juristic person as a director of the above school juristic person. As such, Defendant 1, as a director of the above school juristic person, shall agree with the resolution of the board of directors to attend the board of directors and to commemorate the honorary president. In accordance with the resolution of the above board of directors, Defendant 1, as the president of the university, is the subject of occupational breach of trust

Therefore, we cannot accept the grounds of appeal that Defendant 1 is merely a director of the above school juristic person and cannot be the subject of dealing with the above school juristic person’s property.

4. Therefore, all appeals are dismissed. It is so decided as per Disposition.

Justices Lee Yong-woo (Presiding Justice)