A. Whether the so-called one shareholder can be the subject of breach of trust against the company (affirmative)

B. Whether the intent to inflict loss on the principal constitutes an element of a crime of breach of trust (negative)

A. The subject of the crime of breach of trust is a person who administers business on behalf of others, and the subject of the act and the principal are clearly separate from the subject of the act in so-called a so-called one-called one-person company, and the subject of the act and the principal are causing property damage to the principal, so the crime of breach of trust may become effective, and ultimately, even if the damage is inflicted on the shareholder, there is no complaint for the crime of breach of trust already established.

B. Since our criminal law does not stipulate the purpose of promoting the interest of himself/herself or a third party in the crime of breach of trust and causing damage to himself/herself, the intent of the crime of breach of trust is sufficient with the awareness that his/her act violates his/her duty, and the intent to cause damage to himself/herself is not required.

Articles 356 and 355 of the Criminal Act

Supreme Court Decision 80Do537 Decided April 13, 1982

Defendant

Prosecutor

Suwon District Court Decision 83No129 delivered on July 8, 1983

This part of the judgment of the court below shall be reversed and remanded to Suwon District Court Panel Division.

We examine the grounds of appeal.

1. According to the reasoning of the judgment below, with respect to the part of occupational breach of trust among the facts charged in this case, the court below held that the court of first instance acquitted the defendant on the same purport on the ground that the defendant and the non-indicted 2 actually own the shares and used the money owned by the defendant and the non-indicted 2 for the repayment of his personal obligation, since the property right of the company in this case is a substantial meaning that the damage of the company is caused by its shareholders, and therefore, even if they consumed the money of the company, the defendant and the non-indicted 1 corporation did not have a criminal intent to cause damage to the company.

2. The crime of breach of trust is established by a person who administers another's business in violation of his/her duty to obtain economic benefits or let a third party obtain economic benefits from another's business and the subject of such act is the person who administers another's business on behalf of another and the subject of such act is the person who actually causes economic damage to the principal as a result of his/her violation of his/her duty. In case of a so-called one company, in which the shares of a stock company actually belong to one shareholder, the subject of the act and the principal are clearly separate and the principal are the subject of the act and the crime of breach of trust is committed when property damage occurs to the stock company, so ultimately, the crime of breach of trust is committed. Thus, even if the damage is ultimately caused to a shareholder (at all times, it shall not be deemed that the damage to the company is identical to the shareholder's damage). Since our Criminal Act does not stipulate the purpose of promoting the profit of the principal in violation of his/her duty to do so, the party member's intent to commit the crime of breach of trust does not require any other opinion.

3. Therefore, in the case of a single company, even if the damage of the company was caused by a violation of duties under the premise that the damage of the company was returned to the one-person shareholder, the court below's decision which acquitted the company as having no criminal intent, i.e., the intent to cause the damage, is not only to confuse the subject of the act, but also to confuse the shareholder with the subject of the act, i.e., the company, which has legal rights and the subject of the obligation, and the shareholders with the subject of profit belonging to the company, and to understand the timing of the crime of occupational breach of trust and the elements thereof, which led to a mistake of misunderstanding the legal principles of the crime

Therefore, the non-guilty portion of the judgment of the court below shall be reversed, and this part of the case shall be remanded to the Suwon District Court Panel Division for a new trial and determination. It is so decided as per Disposition by the assent of all participating judges.

Justices Park So-young (Presiding Justice) Lee So-young (Presiding Justice) Lee So-young, Kim So-young, Lee So-young, Lee So-young, Lee So-young, Lee So-young, Lee So-young, Lee So-young