beta
Text
The judgment below is reversed and the case is remanded to Seoul High Court.
Reasons
The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).
1. As to the prosecutor's grounds of appeal
(a) The crime of occupational breach of trust is established when a person administering another's business commits an act in violation of his duty and obtains, or has a third party obtain, any pecuniary benefit from such act in breach of duty, thereby causing property damage to the principal;
Here, a breach of duty refers to any act in violation of a fiduciary relationship with the principal by failing to perform an act as a matter of course, or by performing an act expected not to perform as a matter of course, in light of the provisions of statutes, the terms of a contract, or the principle of trust and good faith, in light of specific circumstances, such as the content and nature of the business
(see, e.g., Supreme Court Decision 2011Do16763, Feb. 13, 2014). In the crime of occupational breach of trust, the term “when property damage is inflicted” refers to cases where property damage is comprehensively deemed to inflict property damage on a person himself/herself, and includes cases where property damage is actually inflicted, as well as cases where property damage is incurred.
In addition, the determination on the existence of such property damage shall not be based on the legal judgment, but be based on the economic point of view, and once the risk of damage is caused, it does not affect the establishment of the crime of breach of trust even if the damage was recovered later.
(See Supreme Court Decision 2004Do7027 Decided November 9, 2006, Supreme Court en banc Decision 2007Do4949 Decided May 29, 2009, Supreme Court Decision 2014Do12619 Decided September 10, 2015, etc.). In addition, the intent of the crime of occupational breach of trust is that a person who administers another’s business causes property damage to the principal and takes property benefits of himself/herself or a third party, and that such profit and loss is caused by his/her own duty.