배임죄에서 재산상 이익과 손해의 관련성에 관한 연구 - 대법원 2021. 11. 25. 선고 2016도 3452 판결 -

Abstract

The Supreme Court has recently shown a tendency to interpret breach of trust in a restrictive manner. The argument was mainly that it did not apply to ‘a person who handles other people’s affairs’. In other words, the scope of the crime of breach of trust is limited by restrictively interpreting the subject requirements of the crime of breach of trust. However, a recent ruling was issued suggesting a limited interpretation of the crime of breach of trust, requiring the requirement of a relationship between property interests and damages. In the target ruling, the Supreme Court denied the charge of breach of trust even though the person in charge of management of surplus funds as the executive director of Saemaeul Geumgo violated the regulations related to management of surplus funds and purchased each investment product in this case with a risk of principal loss. As an argument, it was pointed out that even if various property profits and losses occur due to an act of violation of duty, the crime of professional breach of trust is established only when a certain relationship, such as a corresponding relationship between the property profits and losses, is recognized. There is a great need for research in that this position of the Supreme Court suggests a new restrictive interpretation of the crime of breach of trust where the expansion of criminality is problematic. Nevertheless, until now, research on property interests and the relationship between property gains and losses is very lacking. To summarize the evaluation of this precedent, first of all, if the new position that the relationship between property interests and damages should be recognized and the intention was to declare not guilty accordingly, it should have been heard and judged by unanimous consent. Next, there is a problem that the term ‘certain relevance’ is very abstract and ambiguous, and lastly, if the crime of breach of trust is interpreted to be limited to the concept of relevance, it is thought that the problem of a gap in punishment may be raised. Therefore, it is believed that it is more appropriate to interpret the crime of breach of trust by limiting it to infringement crime.