[1] The time of commencement of the crime of breach of trust and the time of acceptance / In a criminal trial, the objective element of the crime of breach of trust, the occurrence of damages, or the infringement of the victim's pecuniary interests, which are protected legal interests

[2] The case holding that in a case where the defendant, the representative director of Gap corporation, borrowed KRW 200 million from Eul to Eul for the purpose of investment in the partnership agreement, which was the motive for Gap corporation's establishment, and then prepares and deliver a certificate of borrowing KRW 200 million to Eul company's name, and where Gap corporation's name was prosecuted for occupational breach of trust on the ground that Gap suffered property damage and acquired property profit to Eul by issuing a promissory note with a face value of KRW 200 million in the name of Gap company, the case holding that in light of all the circumstances, the crime of breach of trust is established on the ground that the defendant's occupational breach

[1] The crime of breach of trust is initiated when a person who administers another's business has committed an act in violation of one's duty, i.e., the act in violation of one's duty, and the act in violation of one's own or a third party's duty with awareness or intent to inflict a loss on the principal by acquiring a profit. Such an act in violation of one's own or a third party's duty, thereby causing a loss to the principal (Article 355 (2) of the Criminal Act). However, the act in violation of one's duty in a civil trial is not likely to be null and void as a juristic act in violation of legal order in a civil trial, and there are many cases where there is no loss to the principal. In such a case, the number of breach of trust can not be recognized. However, if there are circumstances where it is possible to deem that the performance of the obligation is actually made due to the act in violation of one's duty, or that there is a risk of causing a loss to the principal due to one's own or a third party's own profit, it must be determined by considering the specific content and nature of another's property and the situation.

[2] In a case where the defendant, the representative director of Gap corporation, borrowed KRW 200 million from Eul to Eul for the purpose of investment in the partnership agreement, which was the motive for Gap corporation's establishment, and then prepares and deliver a certificate of borrowing KRW 200 million to Eul company's name, and where Eul acquired property losses and pecuniary gains from Eul by issuing a promissory note with a face value of KRW 200 million in the name of Gap company, the case affirming the judgment below that the defendant's act constitutes an abuse of representative director's authority, and it was known that Eul knew or could have known that the defendant abused authority to promote his own or a third party's interest regardless of the purpose of profit of Eul company's establishment, and thus, the court below found the defendant's act has no effect on Gap company's establishment of the crime of breach of trust since the defendant's act did not have any effect on Gap company's establishment of the crime of breach of trust since it did not constitute the crime of breach of trust since the defendant's act did not have any actual risk of returning KRW 2100,00,00,00,00,00.

[1] Articles 355(2) and 359 of the Criminal Act / [2] Articles 355(2) and 356 of the Criminal Act

[1] Supreme Court en banc Decision 2014Do1104 Decided July 20, 2017 (Gong2017Ha, 1760)

Defendant

Prosecutor

Law Firm Bunk Law, Attorney Park Hyun-pon

Seoul Central District Court Decision 2014No960 decided July 18, 2014

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

The grounds of appeal are examined.

1. Facts charged;

Around July 14, 2011, the Defendant agreed to make an investment of KRW 1 and KRW 200 million to operate a store, and the Defendant established a victim company and took office as the representative director. The Defendant borrowed KRW 100 million, around June 15, 2011, around KRW 15,000,000,000, and KRW 70 million on September 20, 201, from the office of the victim company, “the victim company borrowed KRW 30 million from Nonindicted 2, to borrow KRW 30 million,” and at the same place on July 27, 201, the Defendant borrowed KRW 200,000,000,000 from each of the victim’s capital gains to the victim company, and at the same time, the Defendant acquired KRW 70,000,000,000 from each of the victim’s capital gains by issuing a promissory note to the victim’s company.”

2. The judgment of the court below

Even according to the facts charged itself, the Defendant’s act of preparing and delivering a certificate of borrowing in the name of the victim company in which he/she is the representative director in order to secure his/her personal obligation to Nonindicted 2, who is his/her creditor, constitutes an abuse of his/her power of representation. In light of the various circumstances shown in the facts charged, Nonindicted 2, who is a creditor and the defendant on the above certificate of borrowing and the certificate of promissory notes, may have known, or could have sufficiently known, that the Defendant abused his/her authority to prepare a certificate of borrowing, etc. for the purpose of

Therefore, the Defendant’s preparing a loan certificate, etc. in the name of the victim Nonindicted 2 does not have any effect on the part of the victim company, and there is no room for the victim company to be liable for damages arising from the employer’s liability or illegal acts, etc. Accordingly, the Defendant’s act of issuing the loan certificate, etc. cannot be deemed as causing property damage to the victim company or causing the risk of damage (see, e.g., Supreme Court Decisions 2010Do1490, May 27, 2010; 2012Do2142, May 24, 2012). In this case, the Defendant is not guilty on the ground that Nonindicted 2 executed a debt certificate of a promissorysory deed, which is null and void, in the name of the debtor, under the name of the debtor, with the seizure and collection order on the property owned by the victim company (see Supreme Court Decision 201Do810, Sept. 29, 2011).

3. Judgment of the Supreme Court

A. The crime of breach of trust is initiated when a person administering another’s business has committed an act in violation of one’s duty, i.e., the act in violation of one’s duty, and the act in violation of one’s own or a third party’s duty with awareness or intent to inflict a loss on the principal by acquiring the benefit of the principal. Such an act in violation of one’s own or a third party’s duty, thereby causing a loss to the principal (Article 355(2) of the Criminal Act). However, the act in breach of one’s duty does not constitute a juristic act in violation of legal order and order in civil trial, and there are many cases where there is a possibility that the act in violation of one’s duty may be invalidated as a juristic act in violation of one’s own law and order, and the result does not cause any loss to the principal. However, the number of breach of trust can not be recognized. In other words, in a criminal trial, the number of cases of breach of trust should be recognized.

B. The court below is justified in holding that even according to the facts charged, the defendant's act constitutes abuse of the representative director's power and the defendant's act was not effective against the victim's company on the ground that he knew or could have known that he abused his authority to promote his own interest or a third party's interest regardless of the victim company's profit-making purpose.

However, it is difficult to accept the part of the lower court’s determination that Nonindicted 2, the other party to the act of breach of duty, in the instant case, was ordered to seize the victim’s company’s property in the name of debt, and furthermore, was actually repaid his claim. According to the record, Nonindicted 2, based on the quasi-notarial deed prepared by the Defendant, received the order of seizure and assignment as to the amount up to 200 million won out of the victim’s lease deposit return claim against Nonindicted Incorporated Foundation 3 as Seoul Central District Court No. 2012TTTE 207, March 30, 2012. The above seizure and assignment order was finalized on May 10, 2012, and Nonindicted 2, based on the above seizure and assignment order finalized, received KRW 123 million from Nonindicted Incorporated Foundation 3 in the name of debt, and thus, cannot be seen as constituting a crime of breach of trust. Examining the above facts in light of the aforementioned legal principles, it is reasonable to view that the lower court’s judgment was based on the victim’s actual risk or actual risk of breach of trust.

C. Nevertheless, the lower court rendered a not guilty verdict of the facts charged in this case solely on the grounds that the Defendant’s act was legally null and void, etc. In so doing, the lower court erred by misapprehending the legal doctrine on the commencement and timing of breach of trust, thereby affecting the conclusion of the judgment

4. 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 Ko Young-han (Presiding Justice)