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A Study on the Abuse of Representative Power and the Completion Point of Breach of Trust(Crime) - the Per Curiam Decision of the Supreme Court 2014Do 1104, announced July 20, 2017 -

  • Legal Theory & Practice Review
  • Abbr : LTPR
  • 2019, 7(1), pp.121-149
  • Publisher : The Korea Society for Legal Theory and Practice Inc.
  • Research Area : Social Science > Law

Song, Seung Eun 1

1성균관대학교 법학연구원

Candidate

ABSTRACT

Breach of trust is established by a failure to act responsibly for someone who has given duty and acquire the property benefit himself or by letting a third party acquire property benefit as a result establish damage for himself (Article 355(2) of the Criminal Act). Supreme Court has been ruled that ‘the risk of actual harm’ is included in ‘property damage’ in the breach of trust cases consistently. If the breach of trust(crime) is comprehensively examined, it is difficult to become completion point at the stage when the profit or loss is not specified. It is inevitable legal instability due to the expansion of ‘dangerous beings’(concrete dangerous beings) that are not stipulated in the regulation of the criminal law. To limit the punishment of corporate management, only the actual damage is to be recognized as a crime. According to the majority opinion of Supreme Court decisions, when a person has to bear the legal responsibility because of special circumstances, such as when promissory notes are invalidly issued but the promissory notes are nevertheless actually distributed to a third party, the person has completed breach of trust regardless of whether or not his liabilities are fulfilled. However, it is legitimate to conclude that the breach of trust is established when the company actually fulfills its obligations on the promissory notes or its tort liability, regardless of whether the act of issuance is legally effective or whether the promissory notes are distributed to a third party.

Citation status

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