債務不履行과 背任罪(再論)

Non-Performance of Obligation and criminal breach of trust

The perpetrator of criminal breach of trust, per the statutory elements of this offense, is the person who handles another’s matters. The Supreme Court, however, actually determines the existence of criminal breach of trust liability not by finding whether such elements are satisfied, but by finding whether there has been a violation of trust relationship with a certain scope. As for the standard to determine whether there has been a violation of trust relationship, resulting in the criminal breach of trust liability, it has been proposed to ask whether the duty was a substantial one or whether the duty has any importance. However, this standard is vague and not actually functional. In actuality, the real standard is whether it deserves social punishment on the case-by-case basis. This phenomenon makes the distinction between the crime of breach of trust and the limits of non-performance of obligations blur, and applies the crime of breach of trust to the areas governed by the non-performance of obligations, thereby having a potential to threaten the principle of nulla poena [nullum crimen] sine lege. Theories are supposed to guide, and if necessary, to criticize the cases. However, there is a serious concern that theories are in fact simply rubberstamping the cases. This concern is well-founded, as the Supreme Court has recognized a breach of trust liability in a case involving non-performance of delivery obligations of a piece of property. Parties to a purchase and sales contract owe only the duty to perform the contractual obligations, not the duty to manage and protect each other’s property. Acknowledging a party as a trustee of the other, thereby imposing breach of trust liability upon the same is nothing but creating a crime of non-performance of obligations. Although theories and cases recognize the person who manages and protects another’s property, in actuality, it means the person who takes care of another’s matters on his or her behalf. Such interpretation appears to have been influenced by German and Japanese breach of trust theories. It should be, however, noted that Korea’s breach of trust crime has different elements than those of those two countries and that in Germany and Japan, it is proper to interpret the crime in that way. Our version of the crime of breach of trust provides for a person who handles another’s matters, not for a person who breaches another’s trust. It therefore needs to be interpreted differently. Cases and theories, relying upon the theory of breach of trust(Treubruchstheorie), recognize the subject of the crime of breach of trust pursuant to the degree of breach of another’s trust, without being limited by the statutory elements. However, there is no room in Korean law to interpret the crime of breach of trust under the theory of Treubruchstheorie. Setting aside the substances of breach of trust, we should at least note that the theory of Treubruchstheorie prevailed during the Nazi era. It forces us to consider the fundamental problem of whether to pursue the society of freedom or the society of state socialism.