배임죄 폐지와 대체입법의 방향 = Abolition of the Crime of Breach of Trust and the Direction of Alternative Legislation

다국어 초록 (Multilingual Abstract)

The offense of breach of trust (Ba’eim) has long faced fundamental criticism for its indeterminate and overly broad nature as a property crime. While the legislative and policy efforts to address these problems are understandable, the method of reform requires caution. An unexamined abolition of the offense, or a mechanical transplantation of foreign legal models developed under different legal and institutional contexts, would be inappropriate. In any comparative analysis, it is essential to determine whether conduct punishable as breach of trust under Korean law is, in other jurisdictions, still subject to criminal sanctions under other offenses such as fraud or embezzlement, or whether its decriminalization is supported by distinctive social, cultural, or corporate structures in those systems.
Even if a foreign model were to be introduced, fundamental questions would remain-how to respond to newly emerging forms of economic misconduct and how to establish concrete standards for the traditional types of conduct regarded as breach of trust. For these reasons, the government’s current initiative to abolish and replace the existing breach of trust provision in the Criminal Code demands a more careful and comprehensive review. Reforming the provision prematurely, without sufficient conceptual and institutional preparation, is ill-advised. A more reasonable approach would be to retain the current structure of the offense while refining and specifying the criteria for its application. The first step in this direction should be to adopt a stricter and more consistent standard for determining “property damage,” and to develop clearer criteria for each category of breach-of-trust conduct.