횡령죄와 배임죄 구별론의 재검토 - 범죄본질론에 기초한 관계 재구성과 죄수론 -

Korean judicial precedents have generally viewed embezzlement and breach of trust as standing in a general-special relationship. However, they have largely overlooked the legal and practical difficulties that arise from such a perspective. In some instances, court rulings have even contradicted this established framework, resulting in inconsistencies within the case law. This ambiguity creates uncertainty for defendants, who may find it difficult to identify the precise scope of their legal liability. Furthermore, the lack of clear distinction between the two crimes complicates the determination of derivative offenses, such as the handling of criminal proceeds, and the application of special criminal statutes. The essence of embezzlement lies in the unauthorized disposal of entrusted property, depriving the true owner of the ability to exercise one or more of the rights inherent in ownership—use, profit, or disposal—without necessarily establishing any real right such as a lien or servitude in favor of the third party. In contrast, breach of trust is characterized by a violation of fiduciary duty that causes financial harm to another while securing a benefit for the offender or a third party. Given this fundamental distinction in their legal nature and protected interests, it is more appropriate to view embezzlement and breach of trust as independent offenses rather than treating one as a special form of the other. While overlapping situations may occur, these should be treated as cases of real concurrence (material concurrence of crimes), considering the differences in their legal interests, criminal gravity and legislative intent. If the prevailing view and judicial interpretation are to be maintained, legislative reform—such as raising the statutory penalty for embezzlement, as seen in Japan—would be necessary to ensure consistency. In the absence of such legislative measures, the legitimacy of the current interpretive framework remains questionable.