Breach of Trust

In occupational breach of trust, the term "occupation" means something equivalent to a profession or duty. The court has held that, in occupational breach of trust, "occupation" means something equivalent to a profession or duty, namely affairs performed repeatedly and continuously on the basis of one's position in social life.

Affairs amount to an occupation not only when they arise from statute or contract but also when they follow custom, as long as they are affairs attached to a position from which the same conduct is repeated.

In addition, conduct that violates a duty includes any conduct that betrays the relationship of trust, such as failing to perform conduct that would naturally be expected under statute, contract, or the principle of good faith, judged in light of the specific circumstances such as the content and nature of the affairs being handled.

Taking and giving property in breach of trust refers to conduct in which a person who handles another person's affairs receives an improper solicitation in connection with his duties and, directly acquires property or a financial benefit or has a third party acquire it.

It can be difficult to distinguish embezzlement from breach of trust.

Embezzlement may be understood as a crime committed by a person who keeps and manages another person's property, whereas breach of trust may be understood as a crime committed by a person who handles another person's affairs.

In addition, the object of embezzlement is property, while the object of breach of trust is a financial benefit.

The subject of breach of trust is "a person who handles another person's affairs."

In other words, this refers to a person who is in a position to handle another person's property relations or economic interests on an entrusted basis.

If a sole proprietor engages in conduct that violates a duty while handling his own business, breach of trust is not constituted.

For breach of trust to be constituted, the actor must, through conduct that violates a duty, acquire a financial benefit for himself or for a third party.

The benefit here includes not only money but also any financial benefit that has economic value.

This applies not only where the actor acquires a benefit directly but also where the actor causes a third party to obtain a benefit.

The Supreme Court has held that breach of trust is committed only when financial loss to the principal actually occurs, and that breach of trust is not constituted if the occurrence of loss is not clearly proven.

For breach of trust to be constituted, the person who handles another person's affairs must have the intent to cause loss to the principal.

Intent here includes the recognition that one's conduct violates a duty and may cause financial loss, together with a willingness to accept that result.

If the amount of gain is 500 million won or more, the Act on Aggravated Punishment of Specific Economic Crimes applies, and the punishment becomes more severe.

□ Breach of Trust

□ Taking Property in Breach of Trust

□ Giving Property in Breach of Trust

Suwon District Court, Judgment of March 27, 2025, 2024 Godan 1812

Seoul Northern District Court, Judgment of August 29, 2024, 2024 Gojeong 292

First, you should closely review whether your own conduct satisfies the elements of the offense of breach of trust.

It is important to accurately grasp the specific facts, focusing in particular on whether there was conduct that violated a duty, what financial benefit the actor or a third party thereby obtained, and whether loss occurred to the victim.

Only once these basic facts have been organized can one respond effectively to a subsequent investigation by the investigative authorities.

Once an investigation by the investigative authorities begins, various procedures may take place, such as voluntary accompaniment, suspect interrogation, and search and seizure.

Because the content of statements made during this process can have a decisive effect on a future criminal trial, you should respond carefully on the basis of a legal understanding of matters such as the scope of the duty and whether loss occurred.

In particular, the assertion that "there was no intent to pursue a private benefit" must always be accompanied by a logical explanation based on objective grounds, such as relevant materials or business practices, so that it does not end as a mere denial.

If you are placed under investigation for breach of trust, preparing statements or responding on your own can carry a high risk of making statements that differ from the facts or that are misunderstood as unfavorable.

Because such mistaken statements can act as unfavorable evidence in criminal proceedings and may lead to the worst outcome, it is important to receive the assistance of a criminal defense attorney at an early stage.

Our firm has many criminal defense attorneys with an average of more than 10 years of extensive experience, which allows for a systematic and strategic response to breach of trust cases.

In addition, where a civil response such as handling a settlement or a claim for damages is also required depending on the case, we respond in an integrated manner through a system of collaboration with attorneys experienced in civil matters.

In addition, at our own Evidence Investigation Center, we closely analyze account books, transaction records, and other materials held by the client, and we collect and organize evidence that may work in the client's favor in accordance with lawful procedures, so that it can be submitted effectively to the investigative authorities or the court.