배임죄에서 ‘재산상 손해’의 개념

The summary of this commentary on the Supreme Court Decision en banc Decision 2014Do1104 Decided July 20, 2017(hereinafter referred as ‘en banc Decision’) is as in the following: 1. Before this en banc Decision anounced, several decisions of Supreme Court lacked consistency about a problem if a representative director of a corporation who issued invalid promissory notes caused pecuniary loss to the corporation. The Supreme Court decided on the one hand that any pecuniary loss is not caused, “unless there were any special circumstances, such as the promissory note actually being distributed to a third party.” On the one hand decided the Supreme Court that pecuniary loss is caused, so long as “special circumstances that would prevent the promissory note to be circulated” don’t exist. The Supreme Court adopted through this en banc Decision the former position which interpreted the scope of ‘risk of pecuniary loss’ more restrictively and retains the existing position of risk theory. 2. According to the concept of economic property, a property that carries a risk in realizing rights has a minor property value than a property without any risk. Therefore, the risk of future loss to property can be evaluated as a ‘reduction in current property value’. If only the value of property that has been reduced due to concrete risks is identified as property damage. So it is reasonable to maintain the risk theory. 3. In order to maintain the validity of the risk theory, the criterion for judging the pecuniary concrete risks must be clearly defined, so that ‘property damage’ as a component of the crime of breach can perform it’s function to limit the scope of the crime and the criticism that the risk theory violates the constitutional principle such as that of prohibition of analogy interpretation and that of clarity, can be avoided. 4. The criterion for determining the pecuniary concrete risks can be derived from existing discussions about concrete risks. The normative risk theory suggests that concrete risks arise when the victim is no longer able to control or avoid the risky situation caused by the offender. This criterion can be applied to determine the pecuniary concrete risks. In addition the so-called ‘principle of directness’, which approves concrete risks, only when the violation of duties leads directly, i.e. without the intervention of an intermediary act by a third party, to real loss of property. In short, in order to recognize a concrete risk on the property both the uncontrollability of the risk situation and the directness of the occurrence of the real loss are required. 5. In this case of en banc Decision the act of issuing a promissory note in the name of the company ‘A’ the counterpart of the malice, namly the ○○ bank itself, can not cause a concrete risk. This is because there is a room for the victim company to keep the loss of property in check. According to the principle of directness, an intermediary act that the ○○ bank circulates the promissory note to a bona fide third party, must be intervened in order to acknowledge the occurrence of concrete risk.