배임죄에서 ‘이익-손해의 소재동일성’ 요건

The Supreme Court ruled in its rulings in 2021 and 2022 that "even if various property interests and damages occur due to breach of duty, a certain relationship, such as a corresponding relationship between property interests and damages, must be recognized to establish a crime of breach of trust." However, the precedent does not use the term "material identity" that some theories require in fraud. Therefore, questions arise as to whether it is necessary to say that "the material identity or relevance of profit-damage" is required in the crime of breach of trust, what is the meaning of the judgment criteria and in what cases the requirement can actually function, and so on. The material identity or relevance requirements of profit-damage have not been studied in depth so far, and in order for the material identity requirement of profit-damage to function as an objective component that properly distinguishes between cases that should be punished for breach of trust and cases that do not, it is necessary to study the meaning, judgment criteria, and systematic status of the material identity or relevance requirements of breach of trust crime. Under this recognition of the problem, this article examines the need for material identity requirements in our breach of trust crime, its meaning, judgment criteria, and systematic status, while fully considering the difference between German law and Korean law, and examines in what cases the material identity requirements can rightfully restrict the breach of trust constitution requirements.