[1] The case holding that the crime of occupational breach of trust is established in a case where the representative director of Gap company set up a security deposit which he leased a building owned by the company to another person and received part of the security deposit against his company Eul company

[2] Requirements to recognize a beneficiary who gains a profit from the crime of occupational breach of trust and a third party closely related thereto as a co-principal of an act of occupational breach of trust

[1] Article 356 of the Criminal Act / [2] Articles 30 and 356 of the Criminal Act

[2] Supreme Court Decision 99Do1911 delivered on July 23, 1999 (Gong1999Ha, 1832) Supreme Court Decision 2003Do4382 delivered on October 30, 2003 (Gong2003Ha, 2384)

Defendant 1 and one other

Defendants

Law Firm Slun Law Firm, Attorney Park Jong-chul

Gwangju District Court Decision 2007No814 Decided December 21, 2007

The part of the lower judgment against Defendant 1 is reversed, and that part of the case is remanded to the Gwangju District Court Panel Division. Defendant 2’s appeal is dismissed.

The grounds of appeal are examined.

1. Judgment on Defendant 2’s grounds of appeal

After compiling the adopted evidence, the court below acknowledged the facts as stated in its decision, and determined that the act of Defendant 2, the representative director of the Dae Young Industrial Co., Ltd. (hereinafter referred to as the " Dae Young Industrial"), leased the instant building, etc. owned by the Dae Young Industrial Co., Ltd. to Defendant 1, and then appropriated 15 million won out of the lease deposit money for his overdue wages to the Dae Young Industrial Co., Ltd., Ltd. (hereinafter referred to as the "Yung Young Industrial"), which is unrelated to the Dae Young Industrial Co., Ltd. (hereinafter referred to as the "Yyoung Industrial"), constitutes a crime of occupational breach of trust, as an act in violation of the duties of a person who administers the business affairs of the Dae Young Industrial. In light of the relevant Acts and subordinate statutes and the records, the above recognition and decision of the court below is proper, and there is no violation of law such as misapprehending

2. Judgment on Defendant 1’s grounds of appeal

After compiling the adopted evidence, the court below acknowledged the facts as stated in its reasoning, and determined that Defendant 2, who is only the nominal representative director of the Dae Young Industries, leases the building, etc. of this case, which is the ownership of the Dae Young Industries, to Defendant 1, the part related to the 15 million won, appropriating his overdue wages with the security deposit, constitutes an act of breach of trust. The lease contract of this case was concluded in accordance with Defendant 1’s proposal, and Defendant 1 was aware that Defendant 2 was merely the nominal representative director of the Jung Young Industries as a staff member of the Dae Young Young Industries at that time, and thus, Defendant 1 constitutes an accomplice in the crime of occupational breach of trust

However, such determination by the court below is difficult to accept for the following reasons.

In order to recognize a beneficiary who benefits from the commission of the crime of occupational breach of trust or a third party closely related thereto as a co-principal with an executor of the crime of occupational breach of trust, first of all, he should have known that the act of the executor of the act constitutes a crime of occupational breach of trust against the victim himself. Furthermore, it is necessary to actively participate in the act of breach of trust by inducing the executor of the act of breach of trust or participating in the whole process of the act of breach of trust (see Supreme Court Decision 2003Do4382, Oct. 30, 2003).

According to the facts and records acknowledged by the court below, Defendant 2 was accused of delayed payment of wages, etc. by Nonindicted 1 and 2, who are employees of the business of the business of the business of the business of the business of the business of the business of the business of the company of the company of the company of the company of the company of the company of the company of the company of the company of the company of the company of the company of the company of the company of the company of the company of the company of the company of the company of the company of the company of the company of the company, and Defendant 2 leased the building of this case of the company of the company of the company of the company of the company of the company of the company of the company of the company of the company of the company of the company of the company of the company of the company of the company of the company of the company of the company of the company of the company of the company of the company of the company of the company of the company of the company of the company of the company of the company of the company of the company of the company of the company of the company of the company of the company of the company of the company of the company of the company of the company of the company of the company of the company of the company of the company of the company.

However, without examining and making a decision on this point, the court below held that Defendant 1 constitutes an accomplice in the crime of occupational breach of trust by Defendant 2 on the ground that Defendant 2 was aware of the fact that Defendant 1 was merely a nominal representative director at the time of entering into the instant lease agreement, namely, as employee of the Gyeyang Industries. The court below erred by misapprehending the legal principles on joint principal offender in the crime of occupational breach of trust, thereby failing to exhaust all necessary deliberations, which affected the conclusion of the judgment. The grounds for appeal pointing this out are with merit.

3. Conclusion

Therefore, the part of the judgment of the court below against Defendant 1 is reversed, and that part of the case is remanded to the court below for a new trial and determination. Defendant 2’s appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Nung-hwan (Presiding Justice)