學理對於解析銀行法第125條之2核心關鍵之一即「違背職務」要件，較少深入研究，尤其在闡釋實務運用之文獻，則更為少數，故本文希冀釐清與確認該「違背職務」之要件，在實務上是否已形成一套可操作之標準供其評判，俾作為日後研議該罪增修上之基礎。本文在採取實證分析方法之立場下，透過觀察民國89年1月1日起至108年6月6日間，已作成之最高法院及臺灣臺北地方法院裁判，嘗試描繪出此條違背職務之要件應係被如何操作，以及當所蒐集之裁判具有一定質量時，致力使各裁判之見解類型化。最後在本文觀察下，臺灣臺北地方法院首係先劃定出行為人所負責之職務內容，次再依不同種類之業務，審查不同要素，且目前似有將四種業務之判準類型化出來。
One of the key components of Article 125-2 of the Banking Act of the ROC is breach of fiduciary duty. However, there has been little academic inquiry into what constitutes one and even less literature on how it is determined in practice. Therefore, the aim of this thesis is to explore the elements of ＂breach of fiduciary duty＂ and to confirm whether an operable and referenceable standard has already been formed in courts. The results may serve as a reference for future amendments to the Banking Act regarding breach of fiduciary duty. Based on observational analysis, the judgements made by the Supreme Court and the Taipei District Court of the ROC between Jan 1, 2000 and June 6, 2019 are examined. The purpose is to discern how the elements of breach of fiduciary duty pursuant to Article 125-2 had been operated and to carefully categorize the judgments. Findings conclude that in trial, the Taipei District Court first decides the nature of the duty the party had been entrusted, and then looks into different elements accordingly. Currently, it seems that the judgements for the violations of four types of duty can already be characterized.
