Open Decision Ledger · Economic crime
Calculation of the Amount of Gain in Breach of Trust Arising from the Sale of Used Trucks at a Low Price, and the Limits of Applying the Offense of Breach of Trust under the Act on the Aggravated Punishment, etc. of Specific Economic Crimes
Translated from the Korean original. Read the Korean
Supreme Court, Aug. 30, 2012, 2012Do5220 (judgment)
No holding summary · checked against points at issue. The official text publishes no summary of the holding for this decision. The quotation and factors in this record are copied verbatim from the points at issue; the evidence for each axis is taken from the points at issue, the order and the reasons.
Case name: 특정경제범죄가중처벌 등에 관한 법률 위반(횡령)(일부 인정된 죄명: 업무상 횡령)·특정경제범죄가중처벌 등에 관한 법률 위반(배임)
Official text on the National Law Information Center
Question
Where it is established that an occupational breach of trust produced a pecuniary benefit but the value of that benefit cannot be specifically calculated, may the act be charged as the offense of violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (breach of trust)?
Holding
It may not be so dealt with. The Supreme Court held that the value obtained by applying the standard remaining depreciation ratio to the acquisition cost of the trucks does not represent the market price, and therefore the amount of gain cannot be determined on that basis, and that if the prosecution's proof as to the market price is insufficient, the aggravated punishment provision cannot be applied.
Points at issue, verbatim
업무상배임죄에서 재산상의 이익은 인정할 수 있으나 그 가액을 구체적으로 산정할 수 없는 경우, 재산상 이득액을 기준으로 가중 처벌하는 특정경제범죄 가중처벌 등에 관한 법률 위반(배임)죄로 의율할 수 있는지 여부(소극)
Unofficial English translation
Where, in the crime of occupational breach of trust, a pecuniary benefit is recognized but its value cannot be specifically calculated, whether it may be charged as a violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (breach of trust), which imposes aggravated punishment based on the amount of pecuniary gain (negative)
Disposition
Reversed and remanded Stated in the decision
원심판결을 파기하고, 사건을 대구고등법원에 환송한다.
Unofficial English translation
The judgment of the court below is reversed, and the case is remanded to the Daegu High Court.
Form of the test
Existing test applied Stated in the decision
위 매각된 화물차량 21대의 취득가액에 표준감가상각잔존율을 적용하여 산정한 가액은 그 시가를 나타낸다고 할 수 없으므로
Unofficial English translation
since the value calculated by applying the standard residual rate of depreciation to the acquisition price of the 21 freight vehicles sold above cannot be regarded as representing their market price,
Factors
- 포괄일죄에서 공소사실의 특정 정도
- 공소장일본주의에 위배된 공소제기의 소송법적 효과
- 공동정범에서 공모관계의 성립 요건
- 그 가액을 구체적으로 산정할 수 없는 경우
Unofficial English translation
• Degree of specification of the facts charged in a single comprehensive offense
• Procedural effect of an indictment filed in violation of the indictment-only principle
• Requirements for the formation of a conspiracy among joint principal offenders
• Where its value cannot be specifically calculated
Relation to precedent
Follows earlier decisions Stated in the decision
대법원 2001. 11. 13. 선고 2001도3531 판결
Unofficial English translation
Supreme Court Decision 2001Do3531 decided November 13, 2001
Decisions referred to
[1] 대법원 2005. 1. 14. 선고 2004도6646 판결(공2005상, 347), 대법원 2006. 10. 12. 선고 2004도4896 판결 / [2] 대법원 2009. 10. 22. 선고 2009도7436 전원합의체 판결(공2009하, 1921), 대법원 2009. 11. 26. 선고 2009도7567 판결 / [3] 대법원 2008. 9. 11. 선고 2007도6706 판결, 대법원 2011. 12. 22. 선고 2011도9721 판결(공2012상, 207) / [4] 대법원 2007. 4. 19. 선고 2005도7288 전원합의체 판결(공2007상, 923), 대법원 2001. 11. 13. 선고 2001도3531 판결(공2002상, 122)
Burden of proof
The prosecution Stated in the decision
이 부분에 관한 검사의 증명이 부족하다면 그 재산상 이익의 가액을 산정할 수 없다고 보아야 하므로
Unofficial English translation
if the prosecutor's proof on this point is insufficient, it must be regarded that the value of that pecuniary benefit cannot be calculated,
Open question and revisit condition
Where there is no value from comparable sales or appraised value, in what circumstances can it be recognized that the value derived from the standard remaining depreciation ratio represents the market price?
This reading will be re-examined if the case law on the standard for the amount of gain under Article 3 of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes, or on the calculation of the amount of gain from breach of trust, is changed by an en banc decision of the Supreme Court.
Cross-family AI independent reading & axis check
6 of 8 axes matched GPT-6 Astra (OpenAI, codex CLI) · 2026-10-16
When compared with an independent reading of the same text by another AI (GPT-6 Astra), which read only the original text without seeing the first reading, 6 of the 8 axes matched, and the readings diverged on the 4th axis (Form of the test) and the 8th axis (Open question and revisit condition).
Axis 4 (Form of the test): Primary “Existing test applied” vs Independent “Elements stated”
Since the text presents both the general proposition that aggravated punishment cannot be imposed where the value cannot be calculated and the order of reversal and remand, the first reading may place weight on the application to the Case, and the independent reading on the requirements for aggravated punishment.
업무상배임죄에서 재산상의 이익은 인정할 수 있으나 그 가액을 구체적으로 산정할 수 없는 경우, 재산상 이득액을 기준으로 가중 처벌하는 특정경제범죄 가중처벌 등에 관한 법률 위반(배임)죄로 의율할 수 있는지 여부(소극)Axis 8 (Open question and revisit condition): Primary “Where there is no value from comparable sales or appraised value, in what circumstances can it be recognized that the value derived from the standard remaining depreciation ratio represents the market price?” vs Independent “On remand, what is the market price of the vehicles as confirmed through comparable sales or appraisal and the like, and what is the resulting pecuniary benefit?”
The first reading asks for the criteria for special circumstances warranting recognition of the depreciated value as the market price, while the independent reading asks for the actual vehicle market price and the amount of benefit to be confirmed on remand.
업무상배임죄에서 재산상의 이익은 인정할 수 있으나 그 가액을 구체적으로 산정할 수 없는 경우, 재산상 이득액을 기준으로 가중 처벌하는 특정경제범죄 가중처벌 등에 관한 법률 위반(배임)죄로 의율할 수 있는지 여부(소극)Raw responses and comparison record: Protocol · Blind readings (JSONL) · Axis comparison (JSONL) · SHA-256 (JSON)
Lower-court contrast & scope of application
Lower-court reading vs. Supreme Court holding
Lower-court context: The court below (Daegu High Court Decision 2011No479) viewed that the facts charged were all specified and that the argument of a violation of the principle of indictment by a written indictment was not acceptable, and it upheld the judgment of the first instance, which treated as the market price the value obtained by applying the standard remaining depreciation ratio of the Korea Insurance Development Institute to the acquisition cost of 21 trucks, calculated as the amount of gain the total difference of 701,501,903 Korean won between that value and the sale prices, and applied the offense of violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (breach of trust) on the ground that the amount was 500 million Korean won or more.
Supreme Court standard: The Supreme Court accepted as proper the specification of the facts charged, the handling of the principle of indictment by a written indictment, and the finding of conspiracy as to the embezzlement portion, but held that the book value after depreciation bears no relation to the market price, and that there were also circumstances such as corrosion of the sludge transport vehicles and modification and repair costs, so that the amount of gain could not be determined. Stating that the value from comparable sales or the appraised value and the like should have been further examined, it reversed the judgment of the court below in its entirety, including not only this portion but also the remaining portions finding the defendant guilty, which stood in a concurrence of offenses relation to it.
Distinguishing conditions
- Where the Records contain an objective value, such as a value from comparable sales or an appraised value, that can be recognized as the market price
- Where it is proved that there are special circumstances warranting the view that the value derived from the standard remaining depreciation ratio represents the market price
- Where only a simple offense of occupational breach of trust, in which the amount of gain is not a constituent element, is at issue
Record verification notes
Before asserting the same conclusion, it should be checked whether the prosecution separately proved that the amount of gain exceeds the threshold for aggravated punishment by submitting market price data reflecting market supply and demand, the year of manufacture, the state of preservation and management, mileage, accident history, and the like.
From the official text
Points at issue
[1] 포괄일죄에서 공소사실의 특정 정도 [2] 공소장일본주의에 위배된 공소제기의 소송법적 효과 [3] 공동정범에서 공모관계의 성립 요건 및 피고인이 공모의 점을 부인하는 경우 그 증명 방법 [4] 업무상배임죄에서 재산상의 이익은 인정할 수 있으나 그 가액을 구체적으로 산정할 수 없는 경우, 재산상 이득액을 기준으로 가중 처벌하는 특정경제범죄 가중처벌 등에 관한 법률 위반(배임)죄로 의율할 수 있는지 여부(소극)
Unofficial English translation
[1] Degree of specification of the facts charged in a single comprehensive offense [2] Procedural effect of an indictment filed in violation of the indictment-only principle [3] Requirements for the formation of a conspiracy among joint principal offenders and the method of proof where the defendant denies the conspiracy [4] Where, in the crime of occupational breach of trust, a pecuniary benefit is recognized but its value cannot be specifically calculated, whether it may be charged as a violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (breach of trust), which imposes aggravated punishment based on the amount of pecuniary gain (negative)
Summary of the holding
The official text publishes no summary of the holding for this decision. The quotation and factors in this record are copied verbatim from the points at issue; the evidence for each axis is taken from the points at issue, the order and the reasons.
Order
원심판결을 파기하고, 사건을 대구고등법원에 환송한다.
Unofficial English translation
The judgment of the court below is reversed, and the case is remanded to the Daegu High Court.
Provisions referred to
[1] 형사소송법 제254조 제4항 [2] 형사소송법 제254조, 제327조 제2호, 형사소송규칙 제118조 [3] 형법 제30조, 형사소송법 제308조 [4] 형법 제355조 제2항, 제356조, 특정경제범죄 가중처벌 등에 관한 법률 제3조 제1항
Read 2026-10-16 · Cross-read 2026-10-16. All quotes matched against the official text. The Chinese-character placeholders the court used for anonymised parties are given in their Korean readings, and parenthetical Chinese-character glosses are omitted.
Every entry is published only after all quotes have been matched character by character against the official text, and audited by an independent second reading from a different model family across all eight axes. Both agreed axes and text-grounded interpretive divergences are recorded openly. The ledger is a research record, not an assessment of the court or advice on any matter.
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