배임죄에 대한 몇 가지 오해

There are various misunderstandings regarding interpretation and application of criminal breach of trust(CBT) in Korea. One is that Korean Penal Code about CBT has been wrongly enacted. On the contrary Korean Penal Code about CBT is one of the most advanced enactments compared to other countries' related laws. Another One is that the essence of CBT is based on betraya1(‘the betrayal theory’), which derives from enactment and interpretation of German Penal Code. But Two Penal Codes are so different in terms of the constituting elements of CBT that it is not only unnecessary but also harmful to approach CBT in Korean from the German-like viewpoint of the betrayal theory. Truly faithful interpretation of the criminal code cannot be overemphasized. Who has committed CBT and how CBT has been committed, cannot and must not be interpreted and applied in German-like approach, which makes common people feel hard to predictable and uncomfortable in Korea. Moreover requirement of obtaining pecuniary advantage, which is the unique characteristics of Korean Penal code about CBT and can be most desirable legislation in the world, has been overlooked and deemed unnecessary in Korea. This misconception and misinterpretation leads to dangerous effect that mere occurring of the risk of damage is necessary and sufficient to make CBT consummated(‘the Gefährdungsdelikt theory’), which could cause undesirable prosecutions as well as unnecessary convictions of CBT. When we interpret CBT in Korea, it is not legitimate attitude to uncritically accept the approach of the foreign laws which has different penal codes. It is very desirable and necessary to faithfully interpret and thoroughly survey Korean Penal Code about CBT with warmheartedness.