배임수재등
All the judgment below is reversed, and the case is remanded to Chuncheon District Court Panel Division.
The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).
1. As to the Defendants’ giving and receiving property in breach of trust in relation to the transfer and acquisition of the operating right of the educational foundation
A. In the crime of taking property in breach of trust or taking property in breach of trust under Article 357 of the Criminal Act, “illegal solicitation” refers to a solicitation contrary to social norms and the principle of trust and good faith. In determining this, the following should be comprehensively considered: (a) the contents of the solicitation; (b) the kind, amount and form of the acquired property or property profits; (c) the method and manner of providing property benefits; and (d) the integrity of transactions
(See Supreme Court Decision 2010Do3399 Decided May 27, 2010, etc.). B.
When an educational foundation governed by the Private School Act intends to sell its basic property, it shall obtain permission from the competent agency (Article 28(1)), and criminal punishment shall be imposed if the educational foundation violates such permission (Article 73 subparag. 2). In light of the characteristics and public functions of the private school, it is inevitable to take into account not only direct damage to students and parents, but also the State’s involvement in the management of property of the private school within a certain scope in the management of the private school, in consideration of the fact that it is inevitable to secure fundamental property for the implementation of educational projects in the private school due to the lack of the physical foundation, and the existence of the school is endangered
(The Constitutional Court en banc Order 2011Hun-Ba14 Decided February 23, 2012 (see, e.g., Constitutional Court en banc Order 2011Hun-Ba14). On the other hand, there is a case where a school juristic person’s chief director or a private school manager concludes a contract to transfer the right of operation of the school juristic person to a transferee and, in return, receive money equivalent to the transfer of the right of operation from a transferee (hereinafter “contract for transfer of