[2] The case holding that it constitutes a crime of taking property in breach of trust where a person in charge of reservation affairs for a membership golf course sells a right to weekend to be offered to members at a request of a person in charge of forwarding agent and receives money and valuables in the name of the price

[3] Whether the act of taking property in breach of trust, which received money from the multiple persons with the same kind of illegal solicitation, constitutes an inclusive crime (negative)

[2] The case holding that it constitutes a crime of taking property in breach of trust where a person in charge of reservation affairs for a membership golf course sells a license to do so to provide a member at a request of a person in charge of softing agent and receives money and valuables in the name of the price.

[3] Where a person who administers another person's business receives money and valuables from the same person several times in exchange for an illegal solicitation in connection with his/her duties, it shall be deemed a single and continuous crime committed repeatedly for a certain period under the criminal intent, and where the legal interest on the damage is the same, it shall be deemed a single and continuous crime. However, even if the solicitation is the same as that of a single and continuous crime, it shall not be deemed a single comprehensive crime because it is difficult to view the solicitation as a single and continuous crime committed under the criminal intent.

A. As to the first ground for appeal

The crime of taking property in breach of trust under Article 357 (1) of the Criminal Act is established when a person who administers another person's business obtains property or profits from property in exchange for an unlawful solicitation in connection with his/her duties, and in this context, the crime of taking property in breach of trust is not established unless there is an illegal solicitation between the donor and the purchaser of the property or profits. The "illegal solicitation" in this context does not necessarily require it to the extent that it is the substance of occupational breach of trust, and if it is contrary to social rules or the principle of good faith, it is sufficient to say that it is against the social norms or the principle of good faith. In determining this, the contents of the solicitation and the amount of the consideration related thereto, form, and integrity of transactions, which are protected legal interests, must be comprehensively considered, and such solicitation does not necessarily require an explicit solicitation (see Supreme Court Decision 2003Do432

(5) The court below acknowledged the following facts based on the admitted evidence as stated in its reasoning: ① from the viewpoint of the company operating a golf club, it is most important business affairs; ② it is more important to conduct transparent and fair reservation affairs; ② The golf club provides its members with an opportunity to pre-contracts with golf clubs, terms and conditions, etc.; and allows its members to preferentially allocate the pre-contracts to non-member cooperatives on a first-come-come-served basis; ③ The person in charge of the pre-contracts has occupational duties to manage the pre-contracts in accordance with the above principles; ③ the collection of opportunities to use the golf clubs and the fairness and transparency of the pre-contracts to use the golf clubs to the non-indicted company for the purpose of using the pre-contracts to the non-indicted company's money and goods for the purpose of using the pre-contracteds or the market value of the golf clubs, and thus, determined that the non-indicted company's act of violating the above principles has no significant impact on the trust in the golf club or the right to use the golf club.

In light of the above legal principles and records, the above judgment of the court below is just and acceptable, and there is no violation of the rules of evidence or the misunderstanding of legal principles as to illegal solicitation in the crime of taking property in breach of trust or the presumption of innocence, as alleged in the grounds of appeal.

B. Regarding ground of appeal No. 2

In relation to co-offenders who are jointly engaged in a crime, the conspiracy does not require any legal punishment, but is a combination of two or more persons to jointly process a crime and realize the crime. Even if there was no process of the whole conspiracy, if there was a combination of intent to do so in order or impliedly through several persons, the conspiracy relation is established, and even if there was no direct involvement in the conduct, even if there was no direct participation in the conduct of the crime, the person who is not directly involved in the conduct of the crime is criminal liability for the conduct of another co-principal. The above conspiracy can be recognized by the circumstantial facts and empirical rules without direct evidence (see, e.g., Supreme Court Decisions 2002Do868, Jun. 28, 2002; 2003Do7112, Mar. 26, 2004).

Examining the evidence adopted by the court below in light of the records, it is reasonable to find the fact-finding and decision of the court below to the same purport that Defendant 1, as it provided the golf clubs of this case to Defendant 3 and 4, and acquired the price and distributed it to Defendant 1, it can be deemed that there was a public collusion between Non-Indicted 1 and Non-Indicted 2, who was in charge of the reservation duties of the golf clubs of this case as the chief management officer of the Korea Golf&M Group, and Non-Indicted 1, who was in charge of the reservation duties of the golf clubs of this case, and Non-Indicted 2, who was in charge of the management support division, the head of the management support division, which is the department in charge of the reservation duties, simultaneously or in order with or in order, and through an implied

C. Regarding ground of appeal No. 3

Where a person who deals with another person's business receives money and valuables from the same person several times in exchange for an illegal solicitation in connection with his duties, it shall be deemed a single and continuous crime committed repeatedly for a certain period under the same conditions, and the legal benefits from such damage shall also be deemed an inclusive crime (see, e.g., Supreme Court Decisions 98Do3584, Jan. 29, 199; 200Do1155, Jun. 27, 2000). Where he receives money and valuables from several persons after receiving an illegal solicitation respectively, even if such solicitation is the same, it shall not be deemed an inclusive crime since it is difficult to view it as a single and continuous crime committed under the criminal intent. The court below's judgment is justified in its entirety as to this part of the facts charged against Defendant 1, i.e., the facts charged against Defendant 3 and 4, the total amount of money and valuables received from Defendant 3 to 100 billion won, and there is no violation of the legal principles as to the total amount of money and valuables received from Defendant 1 to 2000 billion won.

2. As to the defendant 2, 3, and 4's appeal

The above Defendants did not submit the appellate brief within the statutory period, and the petition of appeal does not state any grounds for appeal.

3. Conclusion

Therefore, all appeals are dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Jeon Soo-ahn (Presiding Justice)