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 reslult establish damage for himself (Article 355(2) of the Criminal Act).
Supreme Court is criticized for expanding the scope of punishment or establishment of breach of trust by acknowledging not only from occurrence of loss regarding interpretation of ‘when property is damaged’ which is component required in breach of trust, but also from possibility of ‘risk of damages’ before it occurs. In this paper, the
contents and the flow of ‘property damage’ of breach of trust seen the case will be reviewed. Due to the Supreme Court is taking a consistent view of not only including actual damage but also risk of damages, there is criticism that Supreme Court is expanding the interpretation of establishment of breach of trust or admit it ahead of consummated time or brings the effect of punishing breach of trust as dangerous criminals.
Evaluation of each case whether risk of property damage is in similar level of specific risk and admitting damage and evaluation by the Supreme Court is valid.
However, there is a problem with the attitude of the Supreme Court, when the do not punish even if there is possibility of risk equivalent to damage or there is no possibility of damage. Since our penal code has an unrecognized provision of breach of trust, even in such cases, intentional or unlawful infringement will be accepted, therefore, it can be punished as an offense of breach of trust.
It should be not result in excessive intervention in private autonomy or business management by unfairly expanding the scope of punishment for establishment of breach of trust. Therefore, it is necessary to interpret the constitutional elements of breach of trust in a limited manner. However, fundamentally, through reviewing whether the constitutional requirement of breach of trust is vague, legislative efforts to continuously rearrange the constitutional elements is essential.