채무부담행위와 배임죄의 손해

This article raises a question on the Supreme Court’s holding so far that the damages in criminal breach of trust (“CBT”: “Baeim-Joe” in Korean, “Untreue” in StGB) cases should include not only the actual loss but the risk of possible proprietary loss, and finding the existence of proprietary damages should not be made in view of legal point but in view of economic point. In this regard, this article reviewed the degree of protection from CBT and the method of evaluation for the proprietary loss focusing on the types of taking obligations and evaluated the implication of the Supreme court en banc decisions on CBT. As a result, the criticisms are found not to be groundless that the Court cases caused the criminal law to overly intervene in the area of party autonomy without clearly distinguishing the breach of trust comprising CBT from the failure of performing civil liability. This article pointed out that the elements comprising CBT should be interpreted rigorously and restrictively in order to wipe out such criticisms. For the solution of the foregoing problems, this article suggests the following. CBT should be interpreted as a crime of infringement according to the wording in criminal code. The stage of obligation constitution and the stage of obligation performance should be clearly distinguished. At the stage of constitution the effect of taking the obligation should not be found in relation with its civil effect. The undertaking of CBT should be found in criminal view point recognizing whether the taking of obligations in breach of trust was made with the intent or not. The consummation of CBT should be found recognizing whether the obligations were actually performed at the stage of performance. All the conducts up to the consummation should be understood as an attempt to CBT.