[1] The amount of breach of trust in a case where a person with a duty to enter into a contract for another person, by entering into a contract at an unfairly high price, has the principal bear an unfairly large amount of debt (=amount obtained by deducting a reasonable contract amount from the contract amount

[2] Whether a person who committed the crime of giving evidence in breach of trust may be a co-offender of the crime of occupational breach of trust (affirmative)

[3] The method of determining whether a non-identification person commits a crime of occupational breach of trust in collusion with his/her identity

[1] The crime of occupational breach of trust is a dangerous crime, and it does not require property damage to the principal in reality for its establishment. Thus, if a person who is in the duty to conclude a contract for behalf of a third party concludes a contract at an unreasonably high price and bears an unreasonable amount of debt to the third party, then the crime of occupational breach of trust is established immediately, and whether the third party actually performs his/her obligation after it is not related to the establishment of occupational breach of trust. In such a case, the amount of breach of trust shall be deemed the total amount of the contract

[2] Even though the crime of occupational breach of trust and the crime of occupational breach of trust are separate crimes, a person who is in a position to manage another person's business and an accomplice may commit occupational breach of trust.

[3] The crime of occupational breach of trust is established when a person in a position to manage another person's business commits an act in violation of his/her duty, thereby acquiring property benefits or having a third party obtain such benefits, thereby causing damage to the principal. In light of the position to manage another person's business, it is an offense to be established due to a family relationship. In light of the position to handle another person's business, it is a case where a punishment is serious due to a family relationship as an aggravated provision for a simple crime of occupational breach of trust. Thus, if a person without such status leads to an offense of occupational breach of trust in collusion with a person with such status, the person without such status shall be subject to punishment for a simple

[1] Article 35(2) of the Criminal Act, Article 356 of the Criminal Act / [2] Articles 30, 356, and 357(2) of the Criminal Act / [3] Articles 33, 355(2), and 356 of the Criminal Act

[3] Supreme Court Decision 86Do1517 delivered on October 28, 1986 (Gong1986, 3153) Supreme Court Decision 87Do1901 delivered on October 10, 1989 (Gong1989, 1705) Supreme Court Decision 97Do2609 delivered on December 26, 1997 (Gong198Sang, 475)

Defendant 1 and one other

Defendants

Attorney Jeong-won et al.

Incheon District Court Decision 98No2752 delivered on February 3, 1999

The part of the lower judgment against Defendant 1 is reversed, and that part of the case is remanded to the Incheon District Court Panel Division. Defendant 2’s appeal is dismissed.

1. Defendant 1 and his defense counsel's grounds of appeal are examined.

A. As to the assertion of mistake of facts against the rules of evidence

(1) Summary of the facts charged in this case

Although the charge of occupational breach of trust against Defendant 1 is unclear, the summary of the charge seems to be as follows.

Defendant 1 is a person who is engaged in the construction business. Co-defendant 1, 1995, from around 00 to March 26, 1996, Co-defendant 1, 200, who was responsible for the business of selecting the constructor of the above apartment repair work and paying the construction cost (hereinafter the above apartment is called the committee of this case), Defendant 1 and Co-defendant 4 of the court below agreed to acquire money in the form of rebates by preparing a double contract with the constructor under the name of the committee of this case, and to appoint the constructor as the general manager of the committee of this case and to disburse the construction contract amount. Co-defendant 3 of this case, Co-defendant 4 of this case, Co-defendant 5 of this case, Co-defendant 1, 200 and Co-defendant 4 of this case, Co-defendant 1, 200 and Co-defendant 3 of this case, Co-defendant 1, 206, as part of the contract amount of this case's apartment repair work, and executed the construction contract amount for Co-defendant 1, 4 of this case.

(2) The first instance court and the lower court’s determination

According to the reasoning of the judgment of the court of first instance, the court below found Defendant 1 guilty of the above facts charged after compiling the evidence which the court of first instance duly examined and adopted, the court below rejected Defendant 1's assertion that Co-defendant 1 was merely an individual agreement between Defendant 1 and the public official of the commission of this case, which was not related to the committee of this case, and was merely an individual agreement between Defendant 1 and Defendant 50,000,000, and Defendant 24,514,037 won in total as the construction cost of this case, even though Co-defendant 1 conspiredd with Defendant 1 to repair the defects of the apartment of this case, and was actually ordered to repair the defects of the apartment of this case at KRW 140,973,873, and the construction cost was paid to Defendant 1. Thus, the court below rejected Defendant 1's assertion that the defect repair contract of this case was merely an individual agreement between Defendant 1 and Defendant 50,000,000 won.

(3) Judgment of the Supreme Court

The facts charged or the facts charged in the judgment of the court of first instance cited by the court below are as follows: (a) whether Defendant 1, in itself, introduced Nonindicted 1 to anyone; and (b) concluded a contract for defect repair work with Nonindicted 1 as a sum of KRW 140,00,000,00 with which the contract amount was deposited; (c) however, according to the judgment of the court below, the court below introduced Defendant 1 and Nonindicted 1 to the Committee of this case; and (d) concluded a defect repair contract with Nonindicted 1 and that the court below represented or represented by the Committee of this case, concluded a defect repair work contract with Nonindicted 1 and the contract amount of which was KRW 140,00,000, and the contents of the facts charged shall not

On the other hand, the facts charged of the crime of occupational breach of trust against Defendant 1 are as follows: (a) in collusion with Co-Defendant 1 in the original trial, Defendant 1 introduced Nonindicted 1 who obtained a construction business license to the Committee or Co-Defendant 1; and (b) in fact, the Committee entered into the instant apartment defect repair construction contract with Nonindicted 1 in which the contract amount of the construction work is KRW 140,000,000,000; (c) unlike its substance, Defendant 1 and Co-Defendant 1 should enter into the instant apartment defect repair construction contract with Nonindicted 1 in the name of the Committee in which the contract amount of the construction work is KRW 300,973,873; and (d) make Defendant 1 pay KRW 245,514,037, a total amount of KRW 245,514,037, which is a difference, and Defendant 1 and Co-Defendant 1 acquired profits of KRW 104,514,037, the residents of the apartment.

However, according to the records, the apartment of this case was occupied by the residents around July 1993, and the construction execution business chain company, New Housing, Seoul, is organized by the committee of this case as the representative of the representative committee of the apartment of this case and the executive officers of the senior citizens' association and the senior citizens' association of the senior citizens' association of this case, and the committee of the senior citizens' association of this case, which was the representative committee of the senior citizens' association of this case, was also entrusted with the construction contract of this case as the representative of the senior citizens' association of this case, and the committee of the senior citizens' association of this case, which was the representative committee of the senior citizens' association of this case, was also entrusted with the construction contract of this case as the representative of the senior citizens' association of this case.

나아가 과연 원심이 인정한 것처럼 피고인 1와 원심 공동피고인이 공소외 1를 이 사건 대표회의 혹은 이 사건 위원회에 소개하여, 이 사건 대표회의 혹은 이 사건 위원회가 공소외 1와 도급금액을 금 140,000,000원으로 하는 하자보수공사계약을 체결하였는가 하는 점( 원심 공동피고인이 이 사건 대표회의 혹은 이 사건 위원회를 대리하거나 대표하는 경우를 포함한다)에 관하여 보건대, 원심이 인용한 제1심판결이 채택한 증거들 중 피고인 1와 공소외 1의 진술 가운데 그에 부합하는 듯한 일부 진술이 없는 것은 아니지만 다음과 같은 이유로 그와 같은 진술을 믿기 어렵다. 피고인 1는 전체적으로 자신이 공소외 1를 원심 공동피고인에게 소개시켜 공소외 1가 공소외 문화종합건설 주식회사(이하 문화종합건설이라고 한다) 명의로 이 사건 도급계약을 체결하였다는 취지로 진술하고 있으나 이 역시 다음에서 보는 바에 의하면 믿기 어렵다. 공소외 1는 자신은 피고인 1로부터 이 사건 아파트의 방수공사, 도장공사 및 조경공사를 대금 140,000,000원에 하도급받아 문화종합건설의 명의를 대여받아 공사를 하였고, 피고인 1와 공소외 1가 위와 같이 대금 140,000,000원에 이 사건 아파트의 방수공사, 도장공사, 조경공사 등을 하기로 약정한 후 피고인 1가 1996. 2. 15. 공소외 1에게 도급금액이 금 300,973,873원으로 기재되고 수급인이 기재되지 아니한 도급계약서(아마도 이것이 이 사건 도급계약서로 완성된 것으로 짐작된다)를 주어 공소외 1가 그것을 가지고 문화종합건설에 가서 그 직원에게 도급금액의 약 5%인 금 15,000,000원을 면허대여료로 지급하기로 약속하고 그 수급인란에 문화종합건설의 기명 날인을 받고, 문화종합건설의 등기부등본, 인감증명, 사업자등록증 사본 등을 받아 가지고 와서 피고인 1에게 교부하였을 뿐 이 사건 도급계약서가 작성되기까지 이 사건 대표회의 혹은 이 사건 위원회에서 이 사건 도급계약의 체결을 주도한 원심 공동피고인을 포함하여 이 사건 대표회의 혹은 이 사건 위원회의 어떠한 사람도 만나본 일이 없다고 진술하고 있고, 원심 공동피고인과 피고인 2, 이 사건 대표회의 회장으로서 그 명의로 이 사건 도급계약을 체결한 윤철은 등은 같은 날 원심 공동피고인이 피고인 1로부터 문화종합건설이 날인한 도급계약서를 건네받아 위 세사람이 모여 윤철은은 도급인 대표로서 서명 날인하고, 피고인 2은 도급인의 보증인으로서 서명 날인하여 이 사건 도급계약서를 완성하였으며, 그 때까지 문화종합건설의 대표나 대리인 또는 직원이나 공소외 1를 만난 일조차 없다는 취지로 진술하고 있는바, 이에 의하면 이 사건 도급계약은 이 사건 대표회의(윤철은) - 원심 공동피고인 - 피고인 1 - 공소외 1 형태의 순차적인 접촉에 의하여 이루어졌고, 이 사건 대표회의는 피고인 1나 공소외 1와 접촉한 일이 없고, 공소외 1 역시 이 사건 대표회의나 원심 공동피고인과 접촉한 일이 없는 상태에서 이 사건 도급계약이 체결되었다고 보아야 할 것이다. 이 점은 대금의 지급관계에서도 그대로 드러나는바, 기록에 의하면 이 사건 대표회의나 이 사건 위원회는 공소외 1에게 공사대금을 직접 지급한 일은 없고, 이 사건 대표회의 회장인 윤철은이 원심 공동피고인의 요구에 따라 같은 날 금 50,486,940원을 피고인 1가 개설한 문화종합건설 명의의 통장에 입금시키고, 같은 날 원심 공동피고인에게 만기 지급액 100,828,729원의 양도성 예금증서(CD) 1매를 교부하여 원심 공동피고인이 이를 피고인 1에게 교부하고, 같은 해 3. 2. 금 21,000,000원, 같은 해 5. 20. 금 73,045,738원을 각 피고인 1가 개설한 문화종합건설 명의의 통장에 입금시켰을 뿐이고, 공소외 1는 피고인 1로부터 같은 해 2. 17.부터 같은 해 12.까지 합계 금 71,200,000원( 공소외 1로부터 다시 도장공사를 재하도급받은 공소외 정명구에게 피고인 1가 직접 지급한 금 5,000,000원과 공소외 1로부터 다시 조경공사를 재하도급받은 공소외 이재순에게 피고인 1가 직접 지급한 금 23,000,000원 포함)만을 지급받았음을 알 수 있기 때문이다(만약 이 사건 대표회의 또는 이 사건 위원회나 원심 공동피고인이 공소사실에 기재되고 원심이 인정한 것처럼 공소외 1와 사이에 이중계약을 체결하였다면 이 사건 대표회의 또는 이 사건 위원회나 원심 공동피고인이 공소외 1와의 이면 약정에 따른 공사대금을 공소외 1에게 직접 지급하였을 것이고, 피고인 1에게 지급하지는 아니하였을 것이다).

Next, according to the records, the purpose of the contract of this case is to include other installation works than rooftop rain waterproofing construction works, painting construction works, landscaping construction works (at least part of construction works for which Nonindicted Party 1 performed gold KRW 140,00,000 according to an agreement with Defendant 1). The contract amount of this case is KRW 62,767,700, painting construction works, KRW 68,617,50, KRW 32,835,00, KRW 400, KRW 400, KRW 32,835,000, KRW 40, KRW 40, KRW 306,084, KRW 59, KRW 69, KRW 652, KRW 57, KRW 975, KRW 167, KRW 57, KRW 57, KRW 975, KRW 57, KRW 1965, KRW 57, KRW 57,000, KRW 57, and KRW 1675.7

However, since the crime of occupational breach of trust is a dangerous crime and does not require property damage to the principal in reality for the establishment thereof, if defendant 1 conspired with co-defendant 1 who has the duty to conclude a contract for defect repair works at an appropriate price for the apartment residents of this case and caused the representative meeting of the court below to assume the obligation for construction works at an unreasonably high price, the crime of occupational breach of trust is established immediately, and thereafter whether the representative meeting of this case actually performs the obligation for construction works after it is not related to the establishment of occupational breach of trust. In such a case, the amount of breach of trust shall be the amount calculated by deducting the reasonable contract amount from the total contract amount of this case where Co-defendant 1 and the representative meeting of the court below agreed to conclude the contract of this case, and it is not likely that the representative meeting of this case deducted the reasonable contract amount from the amount paid as the contract amount of 00,000,000,000,000,000,000,000,000 won for the above construction works and other than the construction works of this case.

Ultimately, the lower court recognized that Defendant 1’s lawful contract amount in the instant contract was KRW 140,00,000, which was subcontracted to Nonindicted Party 1, and recognized as the amount of breach of trust the amount obtained by deducting only the said amount from the amount paid to Defendant 1 by the representative meeting of this case to Defendant 1. This is an error of misapprehending the legal principles on the elements for the crime of breach of trust in the course of occupational duties and the amount of breach of trust and misconception of facts in violation of the rules of evidence. The argument on this point is with merit within the scope set forth above.

B. As to the assertion on the relationship between the crime of occupational breach of trust and the crime of occupational breach of trust.

Even though the crime of occupational breach of trust and the crime of occupational breach of trust are separate crimes, the crime of occupational breach of trust and the crime of occupational breach of trust may be committed separately by a person who is in a position to handle another's business and an accomplice. The court below judged to the same purport. The court below did not err in the misapprehension of legal principles as discussed above. There is no reason to discuss this issue.

C. As to the misapprehension of the legal principle on occupational breach of trust

The crime of occupational breach of trust is established when a person in a position to manage another person's business commits an act in violation of his/her duty and thereby causes damage to the principal by acquiring property benefits or having a third party obtain such benefits. This is an offense established due to a personal relationship in that it is a position to handle another person's business. In light of the status to handle another person's business, the crime of simple breach of trust is an aggravated provision regarding a crime of occupational breach of trust, which leads to the seriousness of punishment due to a personal relationship. Therefore, if a person without such personal relationship committed an offense of occupational breach of trust in collusion with a person with such personal relationship, then the person without such personal relationship shall be subject to punishment provided for a crime of simple breach of trust under the proviso to Article 33 of the Criminal Act (see, e.g., Supreme Court Decisions 97Do2609, Dec. 26, 1997; 86Do1517, Oct.

However, even though it is obvious that Defendant 1 is not a person engaged in the work of entering into a contract for the repair of defects of the residents of the apartment of this case, who is the victim of this case, the court below applied only Articles 356, 355(2) and 30 of the former Criminal Act to Defendant 1 within the scope of the term of punishment for which he has selected imprisonment among the punishments prescribed in Article 356 of the former Criminal Act, and there is an illegality of law application. There is a reason to point this out.

2. Defendant 2 and his state appointed defense counsel’s grounds of appeal are examined.

Examining the evidence admitted by the court of first instance by the court below after comparing it with the records, the court below's decision that found the defendant guilty of the facts charged in this case against the movement of the defendant is acceptable, and there is no error of misunderstanding of facts or misunderstanding of legal principles due to violation of the rules of evidence, as argued by the defendant 2 and the public defender.

3. Therefore, the part of the judgment below against Defendant 1 is reversed, and that part of the case is remanded to the court below. Defendant 2's appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Jong-chul (Presiding Justice)