Requirements for the establishment of the crime of breach of trust and the timing of acceptance / The meaning of “when property damage is inflicted on the principal” in the crime of breach of trust, and the degree of “the risk of actual loss of property” which can be evaluated as having caused property damage (=the degree of specific and practical danger) and the burden of proof for it (=public prosecutor

Articles 355(2) and 356 of the Criminal Act; Article 308 of the Criminal Procedure Act

Supreme Court en banc Decision 2014Do1104 Decided September 20, 2015 (Gong2015Ha, 1573) (Gong2015Ha, 1573), Supreme Court en banc Decision 2014Do104 Decided July 20, 2017 (Gong2017Ha, 1760)

Defendant

Defendant

Law Firm More than Law Firm, Attorneys Professor-soo et al.

Suwon District Court Decision 2016No4447 decided December 7, 2016

The conviction part of the judgment of the court below regarding occupational breach of trust shall be reversed, and this part of the case shall be remanded to the Suwon District Court. The remaining appeal shall be dismissed.

The grounds of appeal are examined.

1. As to occupational breach of trust

A. The crime of breach of trust is established when a person who administers another’s business obtains pecuniary advantage or has a third party obtain it by doing so through an act in violation of one’s duty, thereby causing loss to the principal. Therefore, even if a person who administers another’s business violates one’s duty with the intent to commit the crime of breach of trust, it cannot be said that there is no real loss to the principal. Here, “when causing loss to the principal’s property” includes not only a case where a real loss is inflicted but also a case where a risk of actual damage to the property has been caused. However, the risk of actual damage to the property, which can be assessed as having caused property loss, should reach the degree of specific and real risk, and it is insufficient to the extent that there is a vague possibility (see, e.g., Supreme Court en banc Decision 2015Do6745, Sept. 10, 2015; Supreme Court Decision 2014Do104, Jul. 20, 2017).

B. The summary of the charge of occupational breach of trust by the original supply contract with the Nonindicted Party among the charges of this case is as follows: (a) as if the Defendant, a senior executive officer of the victim company, did not have the right of representation to conclude the contract in the name of the victim company, the order of the original part to obtain the pecuniary benefits equivalent to the original part, and (b) caused property damage by having the victim company bear the same amount of debt equivalent to the same amount.

The lower court found the Defendant guilty of this part of the charges on this part on the ground that the risk of property damage has occurred to the victim company on the ground that the Defendant’s original order did not have an effect on the victim company, but the risk of the victim company’s liability for employer.

C. However, we cannot accept the above determination by the court below for the following reasons.

According to the records, at the time of the instant case, the Defendant issued the original order to the Nonindicted Party via personal e-mail instead of the original order originally used by the victim company, and the Nonindicted Party also issued the electronic tax invoice stating a third party, not the victim company, in connection with the supply of the original order of this case; in the civil lawsuit brought by the Nonindicted Party against the victim company, the Defendant did not conclude the original supply contract on behalf of the victim company; and on the ground that the Nonindicted Party knew or was grossly negligent in not knowing that the Defendant did not have the authority to conclude the original supply contract on behalf of the victim company, the Defendant did not assume the responsibility of the representative director for the said contract (Supreme Court Decision 2013Gahap9656 Decided June 26, 2014).

On the other hand, there is sufficient room to view that there was gross negligence when the Nonindicted Party knew or knew that the Defendant’s original order does not constitute an act of executing the business affairs of the victim company. Therefore, it is difficult to readily conclude that the victim company is liable for the employer’s liability due to the original order of this case. In addition, even according to the circumstances cited by the lower court or the evidence submitted by the prosecutor, it is difficult to deem that the Defendant’s act of ordering the original order of this case causes specific and practical risks to the property of the victim company to the extent beyond reasonable doubt. Nevertheless, the lower court convicted the Defendant of this part of the facts charged on the sole ground of the circumstances indicated in its reasoning, including the existence of risks that the victim company is liable for the employer. In so doing, the lower court erred by misapprehending the legal doctrine on the property damage requirements

D. Of the lower judgment, the part on the charge of occupational breach of trust by the original supply contract with the Nonindicted Party is reversed for the foregoing reason. However, the lower court rendered a single sentence on the ground that the part on conviction of occupational breach of trust and the remaining part on the charge of occupational breach of trust are concurrent crimes under the former part of Article 37 of the Criminal Act, and thus, reversed the entire conviction part of the lower judgment on each occupational breach

2. As to the insult

The Defendant appealed against the dismissal of an appeal against the part on occupational breach of trust and the part on the offense of insult, which separately prescribed the penalty, from the judgment below. However, neither the petition of appeal nor the appellate brief contains any description of the grounds for appeal.

3. Conclusion

Therefore, the guilty part of the judgment below regarding occupational breach of trust is reversed, and that part of the case is remanded to the court below for further proceedings consistent with this Opinion. The remaining grounds of appeal are dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Jung-hwa (Presiding Justice)