Whether there may be property damage in the event that an act of breach of trust or an act of breach of trust causes property loss at the same time, and at the same time, an act of breach of trust or an act of breach of trust causes property loss (negative)

In the crime of breach of trust or the crime of occupational breach of trust, property damage includes not only the case of causing a real loss but also the case of causing a risk of actual damage to property, and the judgment of whether or not property damage exists shall be understood from an economic point of view, instead of a legal judgment. However, in the case of property damage to the principal in general, the case of causing damage to the property of the principal, i.e., at the same time, causing a decrease in the total value of the property of the principal, i.e., when the act of breach of trust causing a property loss at the same time giving compensation for the loss, for instance, when there is no other property damage (the risk of actual damage or actual damage to property), the decrease in the total value of the property, i.e., the loss of property.

Article 356 of the Criminal Act

Supreme Court Decision 80Do2934 Decided June 23, 1981 (Gong1981, 14109) Supreme Court Decision 91Do2963 Decided May 26, 1992 (Gong1992, 2062) Supreme Court Decision 94Do1375 Decided November 21, 1995 (Gong196Sang, 127) (Gong2004Do771 Decided April 9, 2004)

Defendant 1 and one other

Defendants

Law Firm East, Attorney Park Jong-soo

Busan High Court Decision 2002No650 delivered on October 7, 2004

The judgment below is reversed, and the case is remanded to Busan High Court.

We examine the grounds of appeal.

1. According to the reasoning of the judgment below, the court below acknowledged the facts as stated in its reasoning after compiling the adopted evidence, and rejected the defendants' charges against the above defendants 2 by misunderstanding the legal principles as to the above defendant 2's property interest by calculating the catch of an amount of KRW 234,936,00 won in violation of their duties and calculating the above vessel as KRW 100,00,000 in total, and concluding a contract to provide the above vessel with payment in kind to the above company in Busan Dong-dong around June 8, 1998 for the payment in lieu of payment to the above company in lieu of the above company's claim of KRW 385,387,88, which was located in Seocho-dong, Busan, Busan, to preserve the vessel "No. 31 movable property", which is the only property owned by the same industry and making it smooth to operate the above company.

2. In the crime of breach of trust or occupational breach of trust, the term "if any property damage is incurred" includes not only a real damage but also a case where a risk of actual damage to property has been caused, and the existence of property damage is not determined by legal judgment but also from an economic point of view (see, e.g., Supreme Court Decisions 91Do2963, May 26, 1992; 94Do1375, Nov. 21, 1995; 2004Do771, Apr. 9, 2004). Here, the term "property damage" means a case where a property damage is caused by a decrease in the total value of the property of the principal, namely, where a property damage is caused by an act of causing property loss to the principal, and at the same time, where a property damage is not attributable to actual or actual loss (see, e.g., Supreme Court Decision 80Do2934, Jun. 23, 1981).

As to this case, Defendant 1, the representative director of the same industry and the same industry (hereinafter referred to as the "cooperative industry"), was the only property of the same industry or at least the important business property which is the foundation of the company's existence at the time of disposal, and thus, even if the above agreement on payment in kind and the transfer of ownership pursuant thereto are legally null and void due to the special resolution of the general meeting of shareholders at the time of disposal, inasmuch as the above act of disposal in kind completed the registration of ownership on the above ship from an economic point of view, as long as the above act of disposal did not take place, it would result in a practical loss equivalent to the above ship's price or a risk of actual loss in property. However, the court below held that Defendant 2 had a loan claim of KRW 385,387,88 (including the principal and interest thereon) for the above industry, but it did not have any more objective value as the payment in kind on the loan claim to the above company and determined whether it did not have any property loss equivalent to the above amount of loss due to a special resolution of the general meeting.

Nevertheless, the court below, without any deliberation and determination on such issues, recognized that there was property damage which prevents the operation of the above ship to the manufacturing industry due to payment in kind for the above ship without a special resolution of the general meeting of shareholders, and judged that it constitutes the crime of occupational breach of trust. Thus, the court below did not err by misapprehending the legal principles on property damage, etc. in the crime of occupational breach of trust, or by misunderstanding the fact that it failed to exhaust all necessary deliberation, thereby affecting the conclusion of the judgment. Accordingly, the argument in the grounds of appeal pointing this out has merit.

3. Therefore, without examining the remaining grounds of appeal, 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 Park Jae- Jae (Presiding Justice)