배임죄에 있어 ‘타인의 사무를 처리하는 자’의 의미

This paper annotates the Judgment 1 (Supreme Court’s Decision 2017 Do 4027, May 17, 2018) and Judgment 2 (Supreme Court’s Decision 2019 Do 9756, February 20, 2020). Both judgments are about the meaning of “A person who administers another’s business” in criminal breach trust and both judgments involve contradictory points. The Korean Supreme Court has been based on the betrayal theory and admitting the civil default liability fairly extensively under the criminal breach trust. In response, this paper tries to break away from such customs and attempts to limit the establishment of criminal breach trust to certain degree under the theory on violating the duty of handling business. Such efforts are part of the processes in readjusting and limiting the existing customs of admitting the criminal breach trust indiscriminately by reflecting the principle of prohibition on analogical interpretation and principle of clarity under the principle of legality as well as the principle of subsidiarity under Criminal Act In Judgment 1 on double selling of real estate, the Supreme Court keeps its stance that the vendor is “A person who administers another’s business” and therefore criminal breach trust is established. According to the Supreme Court, the duties of vendor include “Duty to cooperate on ownership transfer registration” and “Special duty to manage and protect the properties” and violation of such duties applies to the criminal breach trust. On the other hand, in regard to establishment of the criminal breach trust of the person who disposed the movables provided for ownership transfer security in Judgment 2, the Supreme Court points out that “A person in a trade relationship with conflicting interests where the other party gains profits such as realizing bonds or fulfilling contractual rights or a person with incident duties to protect or care the other party in performing the contract does not necessarily mean that he or she is the person who administers another’s business. A person who administers another’s business shall be the one who handles the property affairs with consigned rights in fundamental and typical consignment.” In other words, it is clear that the scope of “A person who administers another’s business” in Judgment 2 does not cover the duty to cooperate on ownership transfer registration under Judgment 2. Thus, “Duty of Vendor” in the double selling of real estate shall be excluded from “Duty of administering another’s business” and Judgment 1 shall be amended accordingly. While this paper agrees that the act of the defendant does not apply to the act of “A person who administers another’s business” in case of disposing the movables provided for ownership transfer security at will, the act may be punished under embezzlement instead of sentencing the innocence for the breach of trust. Therefore, such act shall be handled under the findings of substantial truth and principle of due process by the court.