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

[2] The case holding that, in case where the apartment sale business executor entered into a contract for construction work with the contractor and the apartment building construction contract, and entered into such contract and entered into a joint account with the developer to receive the sales proceeds into the joint account and pay the construction proceeds, etc. with the sales proceeds, but the executor did not deposit them into the joint account and used them for the repayment, etc. of its existing obligations, the execution company's duties to pay the construction proceeds to the contractor without depositing them in the joint account, and thus, the act of the event cannot be deemed as

[1] The crime of breach of trust is established when a person administering another's business obtains pecuniary advantage or let a third party obtain it through an act in violation of one's duty, thereby causing damage to the principal. Here, the "person administering another's business" refers to a person who acts on behalf of another's business or cooperates in preserving another's property on the basis of a bilateral trust relationship between the two parties, and if the nature of the business belongs to one's own business, not to another's business, the person who administers another's business is not a person administering another's business

[2] The case holding that in a case where a construction contractor of an apartment building enters into a construction contract for an apartment building with a contractor of an apartment building and entered into a construction contract for an apartment building with the contractor, and the contractor enters into such contract and pays the sale price, etc. with the proceeds of the apartment unit, but the contractor does not deposit the proceeds of the apartment unit into the joint savings account and uses them for the repayment of its existing debt, etc., the above special agreement is merely merely an agreement to secure the repayment of the construction cost for the construction project, and the right to receive the proceeds of the sale from the buyer of the apartment unit is still an executor, and the affairs to pay the construction cost to the contractor from the buyer of the apartment unit belong to the contractor's own affairs, and therefore the act of the event is merely a non-performance of civil liability for the construction project, and it cannot be deemed that

[1] Article 355 (2) of the Criminal Code / [2] Article 355 (2) of the Criminal Code

[1] Supreme Court Decision 99Do457 delivered on March 14, 2000 (Gong2000Sang, 1005) Supreme Court Decision 2001Do3534 Delivered on June 14, 2002 (Gong2002Ha, 1732) Supreme Court Decision 2003Do763 Delivered on September 26, 2003 (Gong2003Ha, 2129) Supreme Court en banc Decision 2003Do7645 Delivered on June 17, 2004 (Gong2004Ha, 181)

Defendant

Prosecutor

Attorney O Jong-ok

Seoul High Court Decision 2007No1995 decided Dec. 21, 2007

The appeal is dismissed.

The grounds of appeal are examined.

The crime of breach of trust is established when a person who administers another's business obtains pecuniary benefits or has a third party obtain such benefits from an act in violation of one's duty, thereby causing damage to the principal. Here, the "person who administers another's business" refers to a person who administers another's business by proxy or cooperates in preserving another's property on the basis of a fiduciary relationship between the two parties (see, e.g., Supreme Court Decisions 2003Do763, Sept. 26, 2003; 2003Do7645, Jun. 17, 2004; 2003Do7645, Jun. 17, 2004). If the nature of another's business belongs to one's own business, not a person who administers another's business, even if it administers another's business for the other's business (see Supreme Court Decision 91Do2184, Dec. 10,

Examining the reasoning of the judgment below in light of the aforementioned legal principles and the records, the court below held that the defendant, the representative director of the non-indicted 1 corporation, entered into the contract of the apartment construction in this case between the non-indicted 1 corporation and the non-indicted 1 corporation (hereinafter only referred to as the "sub-indicted 1 corporation"), since the contract of the apartment construction in this case is executed jointly by mutual agreement with the non-indicted 1 corporation, and the final liability for the sale performance is paid as sales proceeds, the non-indicted 1 corporation and the construction proceeds are paid as sales proceeds only to the deposit account opened under the joint name of the non-indicted 1 corporation and the non-indicted 1 corporation, and the sale proceeds are not recognized as all the non-indicted 1 corporation's business expenses, the non-indicted 1 corporation's construction proceeds, the payment of unpaid land principal and interest, the construction proceeds of the non-indicted 1 corporation's apartment construction, the non-indicted 1 corporation's operation funds and other non-indicted 1 corporation's management proceeds, and there are no errors in law that the defendant 1 corporation's existing sales proceeds are paid as sales proceeds.

Therefore, the appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Hwang-sik (Presiding Justice)