1. As to Defendant A’s property in breach of trust and the property in breach of trust of Defendant B and C

A. As to Defendant B’s assertion on the principle of illegal solicitation and incompetence, the “illegal solicitation” in the crime of giving and receiving property in breach of trust does not necessarily require it to the extent that it constitutes the substance of occupational breach of trust, and it is sufficient that it goes against social rules or the principle of good faith.

In determining whether a case constitutes an "illegal solicitation", the contents of the solicitation and the amount of the consideration related thereto, forms, and integrity of transactions, which are protected by the law, shall be comprehensively considered. The solicitation does not necessarily have to be explicitly and implicitly made.

In addition, where the nature of money and valuables provided to a person who carries out another's business is indivisiblely combined with the nature of the money and valuables as consideration for illegal solicitation and other acts, such money and valuables shall be deemed as having the nature of the money and valuables as consideration for illegal solicitation.

(see, e.g., Supreme Court Decision 2012Do535, May 24, 2012). Meanwhile, in a case where it is deemed that there is no likelihood that a substantial disadvantage may be inflicted on the defendant’s exercise of his/her right to defense in light of the progress of the trial to the extent consistent with the facts charged, the court may, ex officio, recognize facts different from those stated in the indictment, even

(See Supreme Court Decision 200Do4419 Decided November 22, 2002, etc.). Moreover, the recognition of criminal facts ought to reach the level of proof that there is no reasonable doubt (Article 307(2) of the Criminal Procedure Act). However, the selection of evidence and the probative value of evidence, which are based on the premise of fact finding, are the free judgment of the fact-finding court.