Practice Areas

Breach of Trust

Breach of trust is a crime committed when a person who handles another person's affairs obtains a financial benefit through conduct that violates that person's duty. A breach of trust is subject to a high level of punishment.

1. Breach of Trust | Definition

Breach of trust elements practice area

Breach of trust is a crime committed when a person who handles another person's affairs disregards that duty, obtains an improper benefit for himself or for a third party, causing loss to the person who entrusted the affairs.

In other words, a person may be punished when he breaches an entrusted duty to pursue a benefit, causing financial loss to another person.

What Is Occupational 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.

What Is Taking and Giving Property in Breach of Trust?

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.

Differences From Embezzlement

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.

2. Breach of Trust | Elements of the Offense

Breach of trust elements practice area

Breach of trust must satisfy the following elements of the offense.

A Person Who Handles Another Person's Affairs

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.

If a Financial Benefit Is Acquired

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.

Financial Loss to the Principal (Company)

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.

Intent

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.

3. Breach of Trust | Sentencing Standards

The sentencing standards for breach of trust are as follows.

An attempt to commit breach of trust is also punishable, and imprisonment of up to 10 years may be imposed together with suspension of qualifications.

Level of Punishment for Breach of Trust

Article 355 of the Criminal ActImprisonment for up to 5 years or a fine of up to 15 million won

Level of Punishment for Occupational Breach of Trust

Article 356 of the Criminal Act

Imprisonment for up to 10 years or a fine of up to 30 million won

Level of Punishment for Taking and Giving Property in Breach of Trust

Article 357 of the Criminal Act

Imprisonment for up to 5 years or a fine of up to 10 million won

If a financial benefit is given, imprisonment for up to 2 years or a fine of up to 5 million won
Any property acquired by the offender or by a third party who is aware of the circumstances shall be confiscated.

What If the Amount of Gain Is 500 Million Won or More?

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.

If the amount of gain is 500 million won or more but less than 5 billion won

Imprisonment for a definite term of at least 3 years

If the amount of gain is 5 billion won or more

Life imprisonment or imprisonment for at least 5 years

Sentencing Guidelines

□ Breach of Trust

▷ Passive participation in the offense due to actual pressure and the like

▷ If the risk of loss has not largely materialized

▷ A substantially one-person company or family company

▷ If the conduct was solely for the company's benefit

▷ If the degree of the breach of duty is minor

▷ Mental and physical weakness

▷ Voluntary surrender or whistleblowing of internal wrongdoing

▷ No desire for punishment or recovery of the loss (including by deposit)

▷ Where there is a purpose such as basic living or medical expenses

▷ If most of the criminal proceeds have not been spent

▷ Passive participation

▷ If it is not occupational breach of trust

▷ If the ownership stake in the harmed company is high

▷ Sincere remorse

▷ No prior criminal punishment

□ Taking Property in Breach of Trust

▷ If the degree of participation and the actual amount of gain are extremely minor

▷ Mental and physical weakness

▷ Voluntary surrender or whistleblowing of internal wrongdoing

▷ Return of money or other benefits before the investigation begins

▷ No desire for punishment or recovery of the loss (including by deposit)

▷ Sincere remorse

▷ No prior criminal punishment

□ Giving Property in Breach of Trust

▷ If the person passively complied with an active demand by the recipient

▷ If there are grounds that particularly warrant consideration in the motive for the offense

▷ Mental and physical weakness

▷ Voluntary surrender or whistleblowing of internal wrongdoing

▷ No desire for punishment or recovery of the loss (including by deposit)

▷ Passive participation

▷ Sincere remorse

▷ No prior criminal punishment

Levels of Punishment Seen Through Related Precedents

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

The defendant received an improper solicitation to allow the supply of flooring materials and ancillary materials produced by the company at which he was employed, and over a total of 22 occasions, such as having A pay restaurant bills on his behalf, he acquired property or financial benefits worth approximately 30 million won.

Accordingly, taking property in breach of trust was constituted, and a sentence of 1 year of imprisonment and collection of equivalent value of approximately 80 million won was imposed.

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

The defendant, while working in a driving role at the victim company, was keeping a corporate card in the victim's name for use on items such as fuel costs and accident-handling costs for company vehicles.

The defendant thereafter used the corporate card for personal purposes, such as refueling his own vehicle, over a total of more than 600 occasions, causing financial loss to the victim.

As a result, occupational breach of trust was constituted, and a fine of 2.5 million won was imposed.

4. How to Respond to Breach of Trust

Breach of trust sentencing standards

If you are placed under investigation for breach of trust, you should carefully examine the elements of the offense, such as the breach of duty and the occurrence of loss.

If the charge of breach of trust is recognized, it is difficult to avoid criminal punishment, and depending on the amount of gain the possibility of an actual custodial sentence is also high, so a prompt response is recommended.

Confirming the Charge and Understanding the Facts

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.

Responding to the Investigation

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.

Establishing a Defense Strategy

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.

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