배임죄에서 재산상 손해와 임무위배행위- 대법원 2015. 8. 13. 선고 2014도 5713 판결의 평석 -

It is presumed that the decision to admit the guilty of breach of duty for the use of public funds for purposes other than the purpose of its original one of the target judgment is based on the explanation of the so-called deviance of purpose theory, which has been discussed in Germany. However, the target judgment does not reflect or examine the characteristics of the Korean written regulations regarding the damage of breach of trust while developing similar jurisprudence as Germany's Deviation of Purpose theory with respect to the interpretation of damage to property in our crime of breach of trust. The target judgment contains a number of problems, not conforming the provisions of our crime of breach of trust especially demanding the property damage, confusing our criminal law system in its interpretation, replacing the test of concept property damage to normative one, altering the nature of breach of trust to the crime protecting freedom, and blurring the distinction between the requirements for action of breach of duty and the property damage, etc. These problems inherent in the target judgment not only break the theoretical coherence of the interpretation of the component of breach of trust, but also raising the risk of impairing the predictability of the citizens, undermining the principle of the criminal law. If the court intends to maintain the basic framework of this jurisprudence decided by the target judgment in the future, in order to avoid unnecessary misunderstanding that this attitude uncritically borrowed the German jurisprudence established in the Nazi era, It should be possible to logically explain why and how much the 'damage' is caused from the breaching of purpose of the fund. But this judgment does not provide such an explanation, it is inevitable to make a final negative evaluation about both the jurisprudence and the conclusion reached by the this judgment.