[1] The meaning of property benefits acquired by an offender or a third party in the course of occupational breach of trust, and whether the crime of occupational breach of trust is established in case where an offender or a third party did not acquire property benefits (negative)

[2] In a case where the chairman of the council of occupants' representatives refused to affix the seal of the disbursement resolution for the payment of the heat use fee and imposes the overdue charge on the apartment occupants, the case reversing the judgment below which recognized the crime of occupational breach of trust on the ground that the supplier who received the delayed payment of the heat use fee cannot be deemed to have acquired the proprietary

[1] The crime of occupational breach of trust is established when a person who administers another person's business obtains pecuniary benefits or has a third party obtain such benefits by acting in violation of his/her duties and thereby causes loss to the principal. Here, "in cases where property damage is inflicted on the principal" refers to cases where the property of the principal is generally damaged by his/her property, namely, the decrease in the total property value, and such legal principle also applies to the property gains that the person who administers another person's business or the third party acquires. In addition, the crime of occupational breach of trust requires an actor to obtain pecuniary benefits by his/her own act of breach of trust or to have a third party obtain pecuniary benefits, so even if he/she suffered loss to the principal, the crime of occupational breach of trust cannot be established unless the actor or the third party has obtained pecuniary benefits.

[2] In a case where the chairman of the council of occupants' representatives refused to affix a seal to the disbursement resolution and imposes an overdue charge on apartment occupants, the case reversing the judgment of the court below which recognized the establishment of the crime of occupational breach of trust on the ground that the supplier acquired an overdue charge on the sole ground that the overdue charge incurred due to the overdue charge constitutes damages for nonperformance of monetary obligations, and it is difficult to readily conclude that the supplier obtained an overdue charge by the supplier, and that the supplier did not actually incur any loss due to the overdue charge or less than the overdue charge due to the overdue charge, only if special circumstances are acknowledged, such as the supplier incurred less than the overdue charge or less damage than the overdue charge amount, it can be deemed that the supplier acquired an pecuniary profit equivalent to the overdue charge, on the ground that

[1] Articles 355(2) and 356 of the Criminal Act / [2] Articles 355(2) and 356 of the Criminal Act

[2] [3] Supreme Court Decision 2004Do7053 Decided April 15, 2005 (Gong2005Sang, 791) Supreme Court Decision 2006Do3145 Decided July 27, 2006 (Gong2006Ha, 1587) Supreme Court Decision 2005Do6439 Decided July 26, 2007 (Gong2007Ha, 1413)

Defendant

Defendant

Law Firm Multilater, Attorney Go Hun-young

Seoul Southern District Court Decision 2007No1415 Decided April 23, 2008

The judgment below is reversed, and the case is remanded to Seoul Southern District Court Panel Division.

1. The summary of the facts charged in this case is as follows.

The defendant, as the chairperson of the council of occupants' representatives of the apartment of this case, has a duty to pay the heat use fee of the apartment within the designated payment period, despite ① the non-payment period of KRW 137,652,360 on March 2, 2006 due to the failure to pay the heat use fee of KRW 137,652,360 on January 2, 2006, thereby causing property damage to the occupant of the apartment of this case and causing the SH to obtain property profits equivalent to the same amount, and ② the non-payment period of KRW 122,101,670 on April 3, 2006 on the aggregate of the heat use fee of the second and the late payment period of KRW 122,386,972 on the part of the occupant of the apartment of this case, thereby causing property damage equivalent to the amount and causing the SH to obtain property profits equivalent to the same amount.

2. Judgment on the grounds of appeal

A. As to the assertion of misapprehension of legal principles as to occupational breach of trust and intentional act, mistake of facts and incomplete hearing due to violation of the rules of evidence

According to the reasoning of the judgment below, the court below acknowledged the fact that the defendant, the chairperson of the apartment council of occupants' representatives of this case, attached a seal to the disbursement resolution, etc. in order to pay the heat use fee of this case, and the defendant was requested to affix a seal to the disbursement resolution, etc. for the payment of the heat use fee of this case while he was well aware of the payment deadline, but he refused to affix a seal on the ground of legal dispute with the previous apartment management entity, etc., and determined that the defendant violated his duty to ensure that the payment of the heat use fee is properly made within the payment period as the chairperson of the council of occupants' representatives, thereby causing substantial property damage to the occupants, and that the defendant was also

In light of the records, the above fact-finding and judgment of the court below are just and acceptable, and there is no error of law such as misunderstanding of legal principles or misconception of facts or incomplete hearing due to violation of the rules of evidence.

B. As to the assertion of insufficient deliberation on the grounds for illegality exclusion

Since the court of final appeal is a follow-up trial on the judgment of the appellate court, matters not subject to a review in the appellate court are not different from the scope of the judgment of the court of final appeal, so it may not be deemed as the grounds for final appeal for reasons other than those which the defendant did not assert as the grounds for final appeal in the appellate court or which are subject to a review by the appellate court ex officio (see, e.g., Supreme Court Decision 9Do2

According to the records, the defendant did not assert the grounds for rejecting illegality as the grounds for appeal, and the court below did not ex officio consider them as the grounds for appeal. Therefore, the defendant's failure to examine the grounds for rejecting illegality as the grounds for appeal cannot be a legitimate ground for appeal, and even after ex officio examination is conducted by the court below, the judgment below does not seem to have any unlawful grounds as alleged in the grounds for appeal, and it cannot be deemed that the judgment was omitted because the judgment of the court below did not make a decision on the above grounds that are not included in the grounds for appeal.

3. Ex officio determination

According to the reasoning of the judgment below, the court below determined that SH acquired property profits equivalent to the total arrears paid due to the delinquency in using the instant heat, on the ground that the Defendant’s breach of trust recognized the increase in the total value of property to SH Corporation.

However, it is difficult to accept such judgment of the court below for the following reasons.

The crime of occupational breach of trust is established when a person who administers another's business obtains pecuniary benefits or has a third party obtain such benefits by an act in violation of his/her duty and thereby causes loss to the principal (Articles 356 and 355 (2) of the Criminal Act). Here, where a person causes loss to the principal's property in a comprehensive view, i.e., causing loss to the principal's property, i., the decrease of the principal's overall property value, and such legal principle also applies to the property gains acquired by a person who administers another's business or a third party. In addition, the crime of occupational breach of trust requires that the principal acquire pecuniary benefits or has a third party obtain pecuniary benefits by his/her act of breach of trust, and even if the actor or the third party has not acquired pecuniary benefits (see Supreme Court Decision 2005Do6439, Jul. 26, 2007).

In this case, it is difficult to conclude that SH has acquired property benefits corresponding thereto solely on the fact that SH has received late payment charges because the late payment charges incurred due to the delinquency in the payment of the heat usage fees fall under damages caused by the nonperformance of monetary obligations. Furthermore, only if there are special circumstances such as the fact that SH has not actually been damaged due to the delinquency in the payment of the heat usage fees or that the SH incurred less losses than the late payment charges, it can be viewed that the SH acquired property benefits equivalent to the difference between the difference between the late payment charges and the late payment charges after deducting the actual amount of damages. The burden of proving that there are special circumstances to deem that SH acquired certain pecuniary benefits, but there is no evidence to prove such fact in the record.

In the end, although the SH Corporation cannot be deemed to have acquired property benefits equivalent to the late payment charge due to the Defendant’s breach of trust, the lower court determined otherwise on the grounds as seen earlier and convicted all the charges. In so doing, the lower court erred by misapprehending the legal doctrine on the breach of trust, thereby adversely affecting the conclusion of the judgment.

4. Conclusion

Therefore, 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 Lee Hong-hoon (Presiding Justice)