[2] The case holding that in case where the defendant, who was entrusted with the duty to take charge of the removal work from the side of the apartment development project execution company, to take charge of the removal work and the duty to take charge of the removal work, entered into an agreement with the removal company to pay part of the subcontract price for the removal work to the defendant when the defendant is selected as the removal company under the agreement of the execution company, it is difficult to view that the contract and the work are paid for the price upon the request of the other party so that the person who

1. The crime of taking property in breach of trust under Article 357 (1) of the Criminal Act is not established unless an illegal solicitation is accepted between a donor and a purchaser of property or profits. The "illegal solicitation" refers to a solicitation that goes against social rules or the principle of good faith. Thus, if the solicitation is merely a matter that merely disturbs the highest preference within the scope permitted by the provision, or is lawful and falls under the scope of normal handling, it cannot be deemed as an illegal solicitation that goes against social rules, and it does not constitute a crime of taking property in breach of trust (see Supreme Court Decision 82Do1656, Sept. 28, 1982, etc.).

2. A. The lower court: (a) concluded a contract with Nonindicted Co. 1 and Nonindicted Co. 2 to set the price for the removal of Nonindicted Co. 3 at KRW 1,50,000 per 3m3m2; and (b) concluded a contract with Nonindicted Co. 4, who was entrusted with the authority to select Nonindicted Co. 3 to take charge of the removal of the primary project site of this case, which was promoted by Nonindicted Co. 1 and Nonindicted Co. 2; and (c) concluded a contract with Nonindicted Co. 3 to set the price for the removal of the removal work at KRW 1,80,000 per 3m2; (d) on condition that the Defendant would acquire only the price equivalent to KRW 3.3m2 per 3m2,000,000 for the remaining site; and (e) on condition that the said Nonindicted Co. 3 would be aware of the price for the removal work of the instant secondary site of this case; (e) on condition that the Defendant would be given an indivisible candidate for the removal work of the said site of this case.

B. However, it is difficult to accept the above determination by the court below for the following reasons.

According to the evidence of the first instance as cited by the lower court, Nonindicted Co. 1 was engaged in services that Nonindicted Co. 3 would have been entrusted to Nonindicted Co. 4 with the authority to select Nonindicted Co. 1’s respective construction sites of this case, and that Nonindicted Co. 3 would have been smoothly engaged in the removal of the project site (hereinafter “distincing services”). The subcontract price for the removal of Nonindicted Co. 1 was also agreed upon by Nonindicted Co. 3, and the Defendant succeeded to the status of the parties under the above agreement and was responsible for the removal of the land in this case’s site. However, Nonindicted Co. 1 was also responsible for the removal of the land in this case’s site by Nonindicted Co. 3 with Nonindicted Co. 4 and Nonindicted Co. 5, who was in charge of the removal of the land in this case’s site to Nonindicted Co. 3, who was already in charge of the removal of the land in this case’s name, on condition that Nonindicted Co. 1 and Nonindicted Co. 5 had been in charge of the removal of the land.

According to the above facts, the operator of the apartment development project of this case grants the defendant the right to select the removal company in the site of the project, and the defendant, taking into account the price for his endeavor to smoothly perform the removal work by taking into account the responsibility and performance of his duties, he shall enter into a subcontract for the removal work on the condition of 150,000 won (one site) per 3.3 square meters per 3 square meters or 140,000 won per 3.3 square meters (two site), and the defendant shall not be allowed to receive remuneration for the removal work by receiving the difference of 50,000 won per 3.3 square meters from the removal company, and it is difficult to view that the defendant's request that the defendant select part of the removal work as the removal company after having agreed that the defendant be selected as the removal company after receiving the above difference on the premise of the selection of the removal company from the subcontractor, and thus, it may not be deemed that the other party to the contract is an indivisible one of the parties to the contract.

On the contrary, the judgment of the court below that found the defendant guilty of both the crime of taking and taking the crime of taking the crime of taking the crime of occupational breach of trust, which erred in the misapprehension of the legal principle on illegal solicitation in the crime of taking the crime of taking the occupational breach of trust, and it is clear that this affected the result of the judgment, and therefore the part on taking the crime of taking the occupational breach of trust and taking the crime of taking the occupational breach of trust among the judgment of the court below should be reversed. Since the judgment of the court below was sentenced to

3. Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Sang-hoon (Presiding Justice)