Open Decision Ledger · Economic crime
Calculation of the Third Party's Benefit in a Contract Involving Improper Changes to Product Specifications and the Standard for Applying Article 3 of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes
Translated from the Korean original. Read the Korean
Supreme Court, Sept. 11, 2025, 2025Do6356 (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: 특정범죄가중처벌등에관한법률위반(뇌물)·특정경제범죄가중처벌등에관한법률위반(배임)·직권남용권리행사방해
Official text on the National Law Information Center
Question
Where a local government official improperly changes product specifications and concludes a contract at the resulting higher price, may the entire increase in the contract price be treated as the counterparty's gain in applying Article 3 of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes?
Holding
The entire increase in the contract price cannot be regarded as a third party's benefit; only the amount remaining after deducting the cost increase ordinarily expected from the change in specifications constitutes the benefit. The Supreme Court found that the court below erred in the legal principle for calculating the benefit by recognizing the entire increase as the benefit on the ground that there were no data on cost increase.
Points at issue, verbatim
정당한 계약금액보다 증가된 계약금액에서 그로 인해 통상적으로 예상되는 비용 증가분을 공제한 나머지 금액
Unofficial English translation
the remainder of the contract amount increased over the lawful contract amount, after deducting the increase in costs ordinarily expected to result therefrom
Disposition
Reversed and remanded Stated in the decision
원심판결을 파기하고, 사건을 부산고등법원에 환송한다.
Unofficial English translation
The judgment of the court below is reversed, and the case is remanded to the Busan High Court.
Form of the test
Elements stated Stated in the decision
업무상배임으로 취득한 재산상 이익이 있더라도 이득액을 구체적으로 산정할 수 없는 경우, 같은 법 제3조를 적용할 수 있는지 여부(소극)
Unofficial English translation
Even where there is a pecuniary benefit acquired through occupational breach of trust, whether Article 3 of the same Act may be applied where the amount of gain cannot be specifically calculated (negative)
Factors
- 본인의 전체적 재산가치의 감소
- 물품의 규격 또는 사양을 당초 계획과 달리 부당하게 변경함으로써
- 예정보다 증가된 가격으로 제3자와 계약을 체결한 경우
- 통상적으로 예상되는 비용 증가분을 공제한 나머지 금액
Unofficial English translation
• a decrease in the overall value of the principal's property
• improperly changing the specifications or standards of the goods from the original plan
• where a contract is entered into with a third party at a price higher than scheduled
• the remainder after deducting the increase in costs ordinarily expected to result therefrom
Relation to precedent
Follows earlier decisions Stated in the decision
대법원 2010. 8. 19. 선고 2009도13682 판결
Unofficial English translation
Supreme Court Decision 2009Do13682 decided August 19, 2010
Decisions referred to
[1] 대법원 2012. 9. 13. 선고 2012도3840 판결, 대법원 2015. 9. 10. 선고 2014도12619 판결(공2015하, 1554) / [2] 대법원 2007. 7. 26. 선고 2005도6439 판결(공2007하, 1413), 대법원 2009. 6. 25. 선고 2008도3792 판결(공2009하, 1249), 대법원 2021. 11. 25. 선고 2016도3452 판결(공2022상, 122) / [3] 대법원 2010. 8. 19. 선고 2009도13682 판결
Burden of proof
Not addressed Not in the decision
Open question and revisit condition
With what materials, other than the quotation, and to what extent must the ordinarily expected cost increase be specifically calculated, and if calculation is impossible, is the application of Article 3 of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes excluded immediately?
If the benefit standard under Article 3 of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes or the method of determining the contract price under the Act on Contracts to Which a Local Government Is a Party changes, this reading will be re-examined.
Cross-family AI independent reading & axis check
7 of 8 axes matched GPT-6 Astra (OpenAI, codex CLI) · 2026-10-16
When compared with an independent reading by another family of AI (GPT-6 Astra), which read only the original text without seeing the first reading, 7 of the 8 axes agreed, and the readings diverged on the 8th axis (Open question and revisit condition).
Axis 8 (Open question and revisit condition): Primary “With what materials, other than the quotation, and to what extent must the ordinarily expected cost increase be specifically calculated, and if calculation is impossible, is the application of Article 3 of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes excluded immediately?” vs Independent “Whether, after deducting the ordinary cost increase arising from the raising of the height of the movable weir, the counterparty's benefit is recognized as 500 million won or more.”
The first reading asks what materials prove the cost increase, to what extent it must be calculated, and what the effect of the impossibility of calculation is, whereas the independent reading asks whether the benefit after deduction of costs amounts to 500 million won or more.
정당한 계약금액보다 증가된 계약금액에서 그로 인해 통상적으로 예상되는 비용 증가분을 공제한 나머지 금액Raw 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 found that, on the defendant's instructions, the height of the movable weir was raised from 1.39m to 2m, that Hamyang County thereby suffered loss by contracting at an amount more than 610 million won higher than the reasonable contract price, and that Non-indicted Company obtained a profit of the same amount, and applied Article 3, paragraph (1), subparagraph 2 of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes. It did not deduct the cost increase on the ground that no materials had been submitted recognizing that Non-indicted Company had incurred additional expenses.
Supreme Court standard: The Supreme Court accepted the findings as to the counts of bribery and of obstruction of the exercise of rights by abuse of official authority, and as to the intent for the breach of trust and the occurrence of loss. However, because the quotation set out the increase in quantity and the rise in unit price arising from the raising of the height, an increase in the costs required of the counterparty to the contract was to be expected, and only the amount remaining after deduction of the ordinary cost increase constitutes the benefit; accordingly, the Supreme Court reversed the breach of trust portion and, on account of the concurrence of offenses, reversed the entire judgment of the court below.
Distinguishing conditions
- A case in which the unit price alone is improperly inflated without any change in specifications or model, so that an increase in the counterparty's costs is not ordinarily expected
- A case in which only the crime of occupational breach of trust under the Criminal Act is at issue, and not Article 3 of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes, so that the value of the benefit does not affect the constitution of the crime
- A case in which only the calculation of the loss to the principal is at issue, and the value of the pecuniary benefit acquired by the actor or a third party is not in question
Record verification notes
Before asserting that the increase in the contract price constitutes the benefit, one needs to check whether circumstances showing that the counterparty's quantity of manufacture or unit price increases on account of the change in specifications appear in the quotation or other Records, and whether a benefit of 500 million won or more is specifically calculable even after deducting that cost increase.
From the official text
Points at issue
[1] 재산상 이익의 가액(이득액)을 기준으로 가중 처벌하는 특정경제범죄 가중처벌 등에 관한 법률 제3조의 적용을 전제로 이득액을 산정할 때 유의하여야 할 사항 / 업무상배임으로 취득한 재산상 이익이 있더라도 이득액을 구체적으로 산정할 수 없는 경우, 같은 법 제3조를 적용할 수 있는지 여부(소극) [2] 업무상배임죄에서 ‘본인에게 재산상 손해를 가한다.’는 것의 의미(=본인의 전체적 재산가치의 감소) 및 이는 ‘행위자나 제3자가 취득하는 재산상 이익’에 대하여도 동일하게 적용되는지 여부(적극) [3] 지방자치단체를 당사자로 하는 계약에 관한 법률에 따른 물품의 제조·구매계약에서 지방자치단체를 위하여 계약을 체결할 임무가 있는 공무원이 업무상의 임무에 위배하여 물품의 규격 또는 사양을 당초 계획과 달리 부당하게 변경함으로써 예정보다 증가된 가격으로 제3자와 계약을 체결한 경우, 제3자가 취득한 이득액(=물품 규격 등의 부당 변경으로 인해 정당한 계약금액보다 증가된 계약금액에서 그로 인해 통상적으로 예상되는 비용 증가분을 공제한 나머지 금액)
Unofficial English translation
[1] Matters to which attention must be given in calculating the amount of gain (the amount of pecuniary benefit) on the premise of applying Article 3 of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes, which imposes aggravated punishment based on the amount of the pecuniary benefit / Even where there is a pecuniary benefit acquired through occupational breach of trust, whether Article 3 of the same Act may be applied where the amount of gain cannot be specifically calculated (negative) [2] The meaning of 'inflicting a pecuniary loss on the principal' in the crime of occupational breach of trust (= a decrease in the overall value of the principal's property) and whether the same applies equally to 'a pecuniary benefit acquired by the actor or a third party' (affirmative) [3] Where, in a manufacturing and purchase contract for goods under the Act on Contracts, etc. to Which a Local Government is a Party, a public official tasked with entering into a contract on behalf of a local government, in breach of his or her duties in the course of business, improperly changes the specifications or standards of the goods from the original plan and thereby enters into a contract with a third party at a price higher than scheduled, the amount of gain acquired by the third party (= the remainder of the contract amount increased over the lawful contract amount due to the improper change of the goods specifications, etc., after deducting the increase in costs ordinarily expected to result therefrom)
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 부산고등법원에 환송한다.
Unofficial English translation
The judgment of the court below is reversed, and the case is remanded to the Busan High Court.
Provisions referred to
[1] 형법 제355조 제2항, 제356조, 특정경제범죄 가중처벌 등에 관한 법률 제3조 [2] 형법 제355조 제2항, 제356조 [3] 형법 제355조 제2항, 제356조, 특정경제범죄 가중처벌 등에 관한 법률 제3조
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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