재산상 이득죄로서 배임죄

Abstract

Korean Criminal Act rules the Embezzlement and Breach of Trust as follows. Article 355 (Embezzlement and Breach of Trust) (2) a person who, administering another person’s business, obtains a pecuniary advantage or causes a third person to do so from another person in violation of one‘s duty, thereby causing loss to such person, shall be punished. It should be noted here that, unlike Japan, Korean Criminal Act defines the “obtaining a pecuniary advantage or causing a third person to do so from another person” requirement as one of the objective compositional requirements. This should be viewed as a legislator's consideration to prevent the courts from finding the accused guilty of Breach of Trust in too many cases. Nevertheless, this “obtaining a pecuniary advantage or causing a third person to do so from another person” requirement has long been overlooked in our practice and academia. To conclude, (i) 'obtaining a pecuniary advantage from another person, thereby causing loss to such person' can be understood as showing the causal relationship between obtaining a pecuniary advantage and causing loss to another person, or (ii) at least both obtaining a pecuniary advantage and causing loss to another person happening in parallel are required for finding somebody guilty of Breach of Trust because only causing loss to another person is not enough for finding somebody guilty of the crime. Also, the law rules that for Breach of Trust, (iii) obtaining a pecuniary advantage must occur at the same time or earlier than causing loss to another person. This is the literal interpretation of Article 355, which is consistent with ‘Nulla Poena Sine Lege’. Judging from the requirement of obtaining a pecuniary advantage for sentencing Breach of Trust, it would be not easy for the court to find against the accused in Breach of Trust cases recently on debate for the establishment of the crime.