Open Decision Ledger · Economic crime
Completed breach of trust where the note amounts were collected on notarised deeds
Supreme Court, Jan. 27, 2022, 2021Do8833 (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: 업무상배임(인정된죄명:업무상배임미수)
Official text on the National Law Information Center
Question
When a representative director, abusing the power of representation, issued promissory notes in the company's name and the holders obtained attachment and collection orders on the notarised deeds, was breach of trust complete even though the notes never circulated, and was the court below right to convict only of attempt on a count that did not separate out the amount actually collected?
Holding
The offence is complete where the obligation actually results in performance of the debt, or the principal bears civil tort liability, so that actual loss or the risk of it arises. Here the holders of the three notes obtained attachment and collection orders on the notarised deeds and collected KRW 30 million and KRW 15 million out of the company's bank deposit, so that KRW 45 million in all was actual loss and that part of the count was completed breach of trust. The execution creditor's duty to return that amount in unjust enrichment does not negate the offence, and because the count was brought as a completed offence the court below had to examine the proof of loss or supplement the particulars.
Points at issue, verbatim
배임죄의 객관적 구성요건요소인 손해 발생 또는 배임죄의 보호법익인 피해자의 재산상 이익의 침해 여부를 판단하는 기준
Unofficial English translation
the criteria for determining the occurrence of damage, which is an objective constituent element of the offense of breach of trust, or whether the victim's pecuniary benefit, which is the protected legal interest of the offense of breach of trust, has been infringed
Disposition
Reversed and remanded Stated in the decision
원심판결을 파기하고, 사건을 서울중앙지방법원으로 환송한다.
Unofficial English translation
The judgment of the court below is reversed, and the case is remanded to the Seoul Central District Court.
Form of the test
Circumstances weighed Stated in the decision
구체적 사안별로 타인의 사무의 내용과 성질, 그 임무위배의 중대성 및 본인의 재산 상태에 미치는 영향 등을 종합하여 신중하게 판단하여야 한다
Unofficial English translation
the content and nature of another's affairs, the gravity of the breach of the duty, and the impact on the principal's financial condition, etc., must be carefully determined comprehensively on a case-by-case basis
Factors
- 배임죄의 실행의 착수시기 및 기수시기
- 배임죄의 객관적 구성요건요소인 손해 발생 또는 배임죄의 보호법익인 피해자의 재산상 이익의 침해 여부를 판단하는 기준
- 형사소송법 제254조 제4항에서 공소사실의 특정을 요구하는 취지 및 공소사실의 특정 정도
Unofficial English translation
• the time of commencement of execution and the time of consummation of the offense of breach of trust
• the criteria for determining the occurrence of damage, which is an objective constituent element of the offense of breach of trust, or whether the victim's pecuniary benefit, which is the protected legal interest of the offense of breach of trust, has been infringed
• the purpose of requiring specification of the facts charged under Article 254 (4) of the Criminal Procedure Act and the degree of specification of the facts charged
Relation to precedent
Follows earlier decisions Stated in the decision
대법원 2017. 7. 20. 선고 2014도1104 전원합의체 판결(공2017하, 1760)
Unofficial English translation
Supreme Court en banc judgment 2014Do1104 decided July 20, 2017 (Gong 2017 Ha, 1760)
Decisions referred to
[1] 대법원 2017. 7. 20. 선고 2014도1104 전원합의체 판결(공2017하, 1760), 대법원 2017. 9. 21. 선고 2014도9960 판결(공2017하, 2023) / [2] 대법원 2001. 2. 23. 선고 2000도4415 판결(공2001상, 813)
Burden of proof
Not addressed Not in the decision
Open question and revisit condition
If the company recovers the collected KRW 45 million from the execution creditors before judgment, does the loss that completes the offence remain?
The remand judgment of the Seoul Central District Court on the KRW 45 million collected portion will show how loss is proved in this count. A later decision on the degree of specificity required by Article 254(4) of the Criminal Procedure Act when the particulars of collection are absent would call for this entry to be read again.
Cross-family AI independent reading & axis check
7 of 8 axes matched GPT-6 Astra (OpenAI, codex CLI) · 2026-10-26
A reader from another model family (GPT-6 Astra), given the official text but not the primary reading, agreed on 7 of the 8 axes; the readings differed on axis 8 (open question and revisit condition).
Axis 8 (Open question and revisit condition): Primary “If the company recovers the collected KRW 45 million from the execution creditors before judgment, does the loss that completes the offence remain?” vs Independent “What sentence should be imposed on remand after treating the collected KRW 45 million as completed occupational breach of trust?”
The primary asks whether recovery before judgment erases completing loss while the independent asks what sentence should follow on remand.
배임죄의 객관적 구성요건요소인 손해 발생 또는 배임죄의 보호법익인 피해자의 재산상 이익의 침해 여부를 판단하는 기준Raw 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 Seoul Central District Court, in its judgment of 25 June 2021 (2021No468), held that issuing the three company promissory notes as security for the defendant's own borrowings was an abuse of the representative power, and that Non-prosecuted Person 1 and Non-prosecuted Person 2 knew or could have known that the defendant acted for his own or a third party's benefit, so that the notes were void against the company. Since the notes never circulated, the company bore no note debt, and neither actual loss nor the risk of it could be found, so the offence never reached completion and remained an attempt. It also treated the KRW 45 million that the holders had collected on the notarised deeds as a matter not included in the count.
Supreme Court standard: The Supreme Court accepted that the notes were void against the company, but held that where performance of the debt actually occurs, actual loss arises, so the KRW 45 million collected under the attachment and collection orders was completed breach of trust, and the execution creditor's duty to return it in unjust enrichment does not exclude the offence. It also held that since the count had been brought as a completed offence, the court had to examine whether loss was proved or supplement the particulars, and that the omission of the collection details did not prejudice the defence, which had been fully tried at both instances. The court below misapplied the law on the time of completion, the occurrence of loss and the specificity of the count and failed to hold the necessary trial; because that part stood in concurrence with the remaining convictions under Article 37, first sentence, of the Criminal Act, the whole judgment was reversed and remanded.
Distinguishing conditions
- A note issued in abuse of the representative power that never circulated and was never enforced, so that no special circumstances show actual performance of the debt or the risk of loss.
- A holder who knew or could have known of the abuse, where the note is void against the company and no loss followed from it.
- A count of attempted breach of trust only, where no part of the note amounts is charged as actually collected under an enforcement title.
Record verification notes
Set the face amounts of the three notes, KRW 200 million, KRW 150 million and KRW 200 million, against what the count charges, and trace each collection with its date, case number and figure, since the Court reasoned from the judgment below and the evidence it adopted on the collections. Then read the civil judgment of 24 October 2019 (2018Gahap545094), which refused enforcement except for the KRW 30 million already enforced, and the appellate judgment (2019Na2054420 and 2019Na2054437), which became final around 5 June 2021, against the criminal count, and confirm which amounts the count and the evidence actually cover.
From the official text
Points at issue
[1] 배임죄의 실행의 착수시기 및 기수시기 / 배임죄의 객관적 구성요건요소인 손해 발생 또는 배임죄의 보호법익인 피해자의 재산상 이익의 침해 여부를 판단하는 기준 [2] 형사소송법 제254조 제4항에서 공소사실의 특정을 요구하는 취지 및 공소사실의 특정 정도
Unofficial English translation
[1] The time of commencement of execution and the time of consummation of the offense of breach of trust / the criteria for determining the occurrence of damage, which is an objective constituent element of the offense of breach of trust, or whether the victim's pecuniary benefit, which is the protected legal interest of the offense of breach of trust, has been infringed [2] The purpose of requiring specification of the facts charged under Article 254 (4) of the Criminal Procedure Act and the degree of specification of the facts charged
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 서울중앙지방법원으로 환송한다.
Unofficial English translation
The judgment of the court below is reversed, and the case is remanded to the Seoul Central District Court.
Provisions referred to
[1] 형법 제355조 제2항, 제359조 [2] 형사소송법 제254조 제4항
Read 2026-10-26 · Cross-read 2026-10-26. 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.
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