[2] In a case where the defendant or his defense counsel acknowledged the voluntariness of the suspect interrogation statement prepared by the prosecutor after the examination of evidence is completed, the person who bears the burden of proof of voluntariness (=the prosecutor) and the

[2] When there is a dispute over the voluntariness of statements written in the suspect examination protocol of the relevant defendant prepared by the public prosecutor, the public prosecutor should prove reasonable and detailed facts to suspect the voluntariness, rather than the defendant's proof, and if the public prosecutor fails to prove the removal of the question of voluntariness, the protocol can not be used as evidence of conviction. This legal principle shall apply to the case where the defendant or his defense counsel made a statement recognizing the voluntariness of the suspect examination protocol of the relevant defendant prepared by the public prosecutor and reversed it. Accordingly, if the defendant or his defense counsel accepted the assertion disputing the voluntariness of the protocol as a result of the examination of evidence, such protocol should be excluded from the evidence of conviction through the decision of exclusion of evidence under Article 139 (4) of the former Rules on Criminal Procedure (amended by Supreme Court Regulation No. 2106 of Oct. 29, 207).

1. As to admissibility

Even if the defendant or his defense counsel made a statement recognizing the authenticity of the interrogation protocol formation of the suspect interrogation protocol against the defendant in question, such statement may be cancelled even after the examination of suspect was completed only when there is a serious defect which makes it difficult to maintain its validity as it is in the first statement that recognized by the declaration of reversal after the examination of evidence was completed, and if it is accepted as reasonable, it shall be excluded from the evidence exclusion protocol [Article 139(4) of the former Rules on Criminal Procedure (amended by Supreme Court Rules No. 2106, Oct. 29, 2007)] of the evidence exclusion protocol.

On the other hand, when there is a dispute over the voluntariness of statements written in the suspect examination protocol of the defendant in question as to the defendant in question, the prosecutor shall prove reasonable and detailed facts to suspect the voluntariness, not the defendant's proof, but the prosecutor shall prove the removal of the question of voluntariness, and if the prosecutor fails to prove the removal of the question of voluntariness, the protocol cannot be used as evidence of conviction (see Supreme Court Decision 2004Do7900 delivered on November 23, 2006). This legal principle shall apply equally to the case where the defendant or his defense counsel makes a statement recognizing the voluntariness of the suspect examination of the defendant in question prepared by the prosecutor, and if the defendant or his defense counsel accepts the argument that the voluntartariness of the protocol completed the examination of evidence, it shall be excluded from the evidence of conviction

According to the records of this case, Defendant 1 and his defense counsel acknowledged the authenticity and decentralization of the prosecutor's interrogation protocol against Defendant 1 during the third trial of the first instance court. On the third trial of the first instance court, Defendant 1 did not raise any objection as to the admissibility of evidence until the completion of the examination of evidence under Article 292 of the former Criminal Procedure Act. On the fourth trial of the first instance court, Defendant 1 and his defense counsel reversed the previous statement in the procedure for statement of evidence as to the result of examination of evidence under Article 293 of the former Criminal Procedure Act, which was made on the fourth trial of the first instance court, and asserted that they denied the substantial authenticity of

In light of the above legal principles, considering the purport of the reversal of the previous statement which appears in the above facts and records, the court below's decision is just in holding that the admissibility of the suspect interrogation protocol against Defendant 1 prepared by the prosecutor is recognized without accepting the previous statement and his defense counsel's assertion, and there is no illegality in the misapprehension of legal principles as to the admissibility of evidence of suspect interrogation protocol as otherwise alleged in the ground of appeal. This part of the ground of appeal is not accepted.

2. As to whether there was an unlawful solicitation as to the duty

The crime of taking property in breach of trust under Article 357 (1) of the Criminal Act refers to a person who administers another's business in exchange for an unlawful solicitation in connection with his/her duties and obtains property or pecuniary benefits. A person who does not have such status can be the subject of the crime. The "person who administers another's business" as the subject of the crime of taking property in breach of trust means a person who is acknowledged to have a fiduciary relationship in light of the principle of trust and good faith in relation with another person. It does not necessarily require that a person has a fiduciary relationship in relation to affairs in relation to an external relationship with another person. It does not require that the affairs should be entrusted. In addition, the grounds for taking property in breach of trust occur through the provision of Acts and subordinate statutes, legal act, custom, or management, and that person who administers another's business should be the subject of the crime of taking property in violation of Article 357 (1) of the Criminal Act. It includes not only the entrusted affairs but also the original relationship with the person who administers another's business, but also the person who is directly related to affairs within the Supreme Court.

According to the reasoning of the judgment below, based on the facts acknowledged by the court below, the court below recognized that Defendant 1, the defendant 1, constitutes a person in charge of the affairs of the Housing Reconstruction Project Association, and that the receipt of money in return for the request from the person who received the order from the defendant 2, to be selected as the contractor, constitutes "illegal solicitation". In light of the above legal principles and the evidence employed by the court below, the decision of the court below is just, and there is no violation of the rules of evidence or misunderstanding of the legal principles as to the crime of taking property in breach of trust and the crime of taking property in breach

3. As to the occurrence of damage to the principal and the amount of additional collection

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 pecuniary benefits in exchange for an unlawful solicitation in connection with his/her duties, and the crime of taking property in breach of trust under Article 357 (2) of the same Act is established when the property or pecuniary benefits have been provided under paragraph (1) of the same Article, and whether damage to another person was inflicted on another person does not affect the establishment of the crime of taking property in breach of trust (see Supreme Court Decisions 83Do2447, Aug. 21, 1984; 83Do2447, Aug. 21, 1984; 2002Do466, Aug. 23, 2002; 205Do5064, Oct. 13, 2005).

The decision of the court below that Defendant 1 collected in full KRW 275 million from Defendant 2 is justified in accordance with the above legal principles, and there is no violation of the legal principles as to the crime of taking property in breach of trust and the crime of taking property in breach of trust, the crime of giving property in breach of trust, or the violation of the rules of evidence.

4. Conclusion

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

Justices Park Ill-sook (Presiding Justice)