횡령죄와 배임죄의 구별

Abstract

It is difficult to distinguish embezzlement from breach of trust. They seem to be the same kind of crime by nature but the legal elements for each of them are quite different. For example, under the Korean Criminal Law, embezzlement is an act of depriving personal property of a victim while breach of trust does not require that the offender should obtain custody of the property. So the difference between these two economic crimes must be analyzed carefully. First, punishing embezzlement is for protecting property rights of an individual but breach of trust is concerning about protecting the total value of assets that a victim has. Second, the actor of embezzlement is limited to a person who keeps personal and real property of others but any entrusted person may be targeted by the crime of breach. Third, the act of embezzlement is an intentional and permanent deprivation of property of a consignor but breach of trust is an act of violating consignee's duties. Fourth, it is needed to think about which kind of contract was concluded between consignor and consignee, and who was supposed to keep the property under the contract for naming an actor as embezzler. Suppose that a consignee who has pledged a mortgage over the realty under consignment agreement places the same realty under the second mortgage or sells it to a third party. The Supreme Court of Korea ruled that the first mortgage constituted an embezzlement but the second mortgage or resale was not a punishable act under the embezzlement provision. However both the first and the second disposals of the realty must be construed as breach of trust because, as a matter of fact, the second transaction is no less harmful than the first.