The meaning of "a person who administers another's business" and "an act contrary to his duties" as a constituent element of breach of trust.

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 through an act in violation of one’s duty, thereby causing damage to the principal. Here, the term “person who administers another’s business” refers to the case of a person who acts as an agent or cooperates in an act in the preservation of another’s property on the basis of bilateral trust relationship, and the term “act in violation of one’s duty” includes all acts in violation of a trust relationship with the principal by failing to perform an act as a matter of course which is expected to be done in accordance with the provisions of Acts, the contents of the contract, or the principle of good faith, in light of specific circumstances, such as the content and nature of the relevant business.

Article 355(2) of the Criminal Act

[Plaintiff-Appellant] Plaintiff 1 and 1 other (Law Firm Gyeong, Attorneys Lee Gyeong-soo et al., Counsel for plaintiff-appellant)

Defendant

Defendant

Attorney Seo Seo-woo et al.

Busan High Court Decision 92No1604 delivered on February 24, 1994

The appeal is dismissed.

The grounds of appeal by defense counsel are examined at once.

1. Examining the evidence cited in the judgment of the court below and the judgment of the court of first instance as cited by the court below in light of the records, when the defendant agreed to dispose of the land of this case, which he shared with a third party, the court below notified the Sido group as if it were to purchase and sell the land of this case to reduce the sale price, and accordingly, it decided to trade the whole land of this case between the party of the Korean Steel Association and the third party, which was the original seller, at 8.5 billion won, but the sale price of the 2/3 shares owned by the Sidodo group as 3.6 billion won and the defendant's 1/39 billion won as the remaining 4.9 billion won as the sale price of the above shares is the remaining 4.9 billion won, and it notified the Sido group as if it reached an agreement to purchase and sell 1.8 billion won per 1/3 of the above land's shares to the third party, and it did not err in the judgment of the court below to find out that it was in violation of the rules of evidence.

2. 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 through an act in violation of one’s duty, thereby causing loss to the principal. Here, “a person who administers another’s business” refers to a person who acts on behalf of another person or cooperates in an act in the preservation of another’s property on the basis of bilateral trust relationship, and “an act in violation of one’s duty” refers to an act in violation of one’s duty, and “an act in violation of one’s duty” shall include any act in violation of one’s trust relationship by failing to perform an act that is naturally expected to be performed, or by performing an act that is expected not to be performed, under the provisions of law, the content of the contract, or the principle of good faith, in light of specific circumstances, such as nature, etc. (see, e.g., Supreme Court Decisions 89Do1524, May 8, 190; 89Do

As seen above, inasmuch as the Defendant was delegated by the Sido Group with the settlement of agreement on the price of physical purchase or sale for the disposal of co-owned land, the Defendant may be deemed a person who vicariously executes part of the business following the disposal of co-owned shares of the Sido Group, a truster, and who administers another’s business. In light of the original purpose of the consignment relationship, barring any special circumstance, the Defendant has the duty of the good faith principle to agree that the sale price of the Sido Group’s co-owned shares should be established equally according to the ratio of co-owned shares of the Defendant and the Sido Group, as well as to the purchase price of the shares of the Sido Group. Nevertheless, the Defendant is sufficient to constitute a crime of breach of one’s duty.

Therefore, the judgment of the court below to the same purport is just, and there is no error of law by misunderstanding the legal principles on breach of trust.

3. Therefore, the 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)