Abstract
The purpose of this study is to analyze the application of Article 125- 2 of the Banking Act regarding crimes of Special Breach of Trust, supplemented by comparative German-Japanese law, legislative evolution and legal theory regarding protection of legal interests, the constitutional elements of the crime and the related issues of the application of the law. Because Special Breach of Trust under the Banking Act was added after the crime of Breach of Trust in the Criminal Law, the constituent elements of the two are not exactly the same but they are very similar. Moreover, the crime of Breach of Trust in our country's criminal law parallels the provisions of the crime of Breach of Trust in Germany and Japan, so it also discusses the constitutional elements and nature of the crimes of Breach of Trust. This analysis focus on Special Breach of Trust from a criminal liability perspective as opposed to a civil or administrative law perspective.
We will discuss the case studies involving heads or employees of domestic and foreign banks before and after the new version of Special Breach of Trust under the Banking Act, and analyzes the application of the old and new laws to a case to properly interpret the constituent elements of Special Breach of Trust, proposing the specific measurement to prevent the heads person or staff of a bank from committing Special Breach of Trust in terms of the practical investigation on the criminal cases regarding Special Breach of Trust. It includes the“self-discipline” from the bank's and the “third-party discipline” of the financial management committee, the judiciary, the customer and the general supervision of the people, and the “enactment of the law on the protection of fraudsters.( the Whistleblower Protection Act) ” When the above three arrows are carried out at the same time, that will be able to achieve the goal of maintaining the trust of the bank and the stability of the financial order.
The conclusion will review the elements of this study and criticisms regarding the application of law. We suggest the criteria for violation of duties, the hierarchical inspection sequence of the constituent elements for the prosecutors, police investigators and judges who are in charge of investigative trials that facilitate the examination of constitutive elements in an orderly manner to achieve economic litigation and the protection of human rights, rapid investigation/trials and justice.
We also put forward suggestions for the relevant doubts regarding the application of the law and the draft amendments to the law, so as to enable the prosecutors to efficiently investigate and deal with cases and enable the bank’s head persons and staff to follow them, avoiding criminal liability and internal punishment.