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The defendant's appeal is dismissed.
Reasons
1. Summary of grounds for appeal;
A. Since the Defendant obtained a loan of KRW 120 million from the victim and did not repay the total amount of KRW 95 million among them, the judgment of the court below that recognized the crime of breach of trust on the total amount of KRW 160 million of the deposit is erroneous in the misunderstanding of facts and affecting the conclusion of the judgment.
B. Since the obligation to repay loan by misunderstanding legal principles is not a business of another person, it constitutes a case where a civil obligation is not performed, and it does not constitute a crime of breach of trust under the Criminal Act.
C. The lower court’s sentence of unreasonable sentencing (one year of imprisonment) is too unreasonable.
2. Determination
A. The judgment of the crime of breach of trust on the assertion of mistake of facts and misapprehension of legal principles is established when a person who administers another’s business obtains property benefits through an unlawful act of breach of duty and causes damage to another person who is the subject of the business. Thus, the subject of the crime must have the status of administering another’s business. In order to be “a person who administers another’s business”, the essential content of the relationship between the two parties should be to protect or manage another’s property on the basis
In addition, when property damage is incurred in breach of trust, it includes not only a case where a real damage is done but also a case where a risk of actual damage to property has been caused, and the judgment on the existence of property damage is not based on legal judgment in relation to the property condition of the principal, but from an economic point of view. Therefore, even if the act of breach of trust is null and void by legal judgment, it constitutes a crime of breach of trust because it constitutes a crime of breach of trust where a real damage has been inflicted on the principal or where a risk of actual damage to property has been caused
Supreme Court Decision 2010Do4613 Decided August 26, 2010