1. As to the ground of appeal on the receipt of property in breach of trust and the receipt of property in breach of trust

A. 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’s business receives illegal solicitation in connection with his/her duties and acquires property or pecuniary benefits. The term “person who administers another’s business” as the principal agent of taking property in breach of trust refers to a person who is acknowledged to have a fiduciary relationship to handle the business in light of the principle of trust and good faith with another person, and does not necessarily have the authority to conduct the business in an external relationship with a third party, and its affairs do not necessarily require comprehensive entrusted affairs, and the grounds for taking property in breach of trust may arise through statutory provisions, legal acts, customs, or office management (see Supreme Court Decision 2010Do11784, Feb. 24, 201). In the crime of taking property in breach of trust, the term “in relation to another person’s business” refers to not only the entrusted business due to such entrustment relationship, but also includes affairs within the scope closely related to such entrustment relationship, but also includes a person who directly or indirectly administers another person’s affairs (see Supreme Court Decision 20360Do.

Meanwhile, the crime of taking property or property in breach of trust is established when acquiring property or property benefits in exchange for an unlawful solicitation as to duties, and the crime of taking property or property in violation of any duty is not established unless there is an illegal solicitation between a donor of property or profits and a purchaser of property or profits. Here, “illegal solicitation” does not necessarily require it to the extent that it constitutes the substance of occupational breach of trust, and it is sufficient if it is contrary to social rules or the principle of trust and good faith. When determining it, the contents and amount of consideration related thereto, form, and transaction integrity, which are protected legal interests, should be comprehensively considered, and there is no need for explicit solicitation (see Supreme Court Decisions 2010Do7380, Sept. 9, 201; 201Do1784, Feb. 24, 2011). The same applies where property or property benefits have been acquired from the other party to the property or property gains in return for the illegal solicitation.

B. Review of the reasoning of the first instance judgment as cited by the lower court and the record reveals the following facts.

(1) On July 1, 200, Defendant 1 entered Nonindicted Company 1 (hereinafter “Nonindicted Company 1”) and worked as the head of the planning and business division. Defendant 2 entered Nonindicted Company 1 on April 1, 2001 and worked as the head of the planning and business division for the head of the planning and business division, and was in charge of the duties of the head of the planning and business division. Defendant 3 entered the Nonindicted Company 1 and retired from office as the managing director of the Nonindicted Company 1 by July 1, 1997, and was in charge of the duties of the head of the planning and business division. Defendant 4 and Defendant 5 operated the real estate brokerage office in the vicinity of the first and fourth apartment of the business division constructed by Nonindicted Company 1. Defendant 1, 3, and 4 are high schools.

(2) Nonindicted Company 1: (a) sold a group of apartment units in the East 1 and the East 1st apartment units; (b) caused a large-scale cancellation incident, which led to the situation in which the 60 household from August 2008 to March 2009 does not sell the apartment units; (c) however, if the sales notice was made, there was a concern that a large number of time has occurred until the conclusion of the sales contract, and that there was a significant increase in the financial burden on the company. Accordingly, Nonindicted Company 1’s management directed Defendant 1 and 2, who was in charge of the relevant business, to promptly dispose of the cancelled household.

(3) On the other hand, around August 29, 2008, Defendant 4 suggested that “If the cancellation household of Nonindicted Company 1 is leased to a third party, Defendant 4 would have contacted him/her so that he/she can act as a broker, and that he/she will act as part of the premium whenever he/she mediates one household.”

(4) After that, Defendant 1 reported to Nonindicted Co. 2, the representative of Nonindicted Co. 1, the resale of the right to sell the cancelled household for the brokerage of Defendant 4, and obtained approval for the re-lease contract. On October 208, Defendant 1 discussed: (a) Defendant 4, at the office of △△△ apartment located in the same ○○○○○ apartment building, Defendant 2, and then discussed: (b) the number of the premium prices around that time; (c) how to distribute the premium if the re-lease contract is concluded with respect to the first cancelled household; (d) the sales price received from the sub-contractor; (e) the interior cost and option expansion cost; and (e) the period period period (hereinafter “sale price, etc.”) deposited the account of Nonindicted Co. 1 into the account of Nonindicted Co. 1; and (e) the premium paid from the sub-contractor pursuant to the external transaction rate, was the basic amount of KRW 17 million in the case of the 200 square unit; and (e) the basic amount of KRW 300,300,000.

(5) In accordance with such agreement, Defendant 2 notified Defendant 4 of the information of the 27th household of the same coal revocation household at around that time. Defendant 4 recruited re-contractors through the △△ Real Estate Office operated by himself or other real estate brokerage offices, and eventually concluded a re-lease contract with respect to the total of 17 households from January 14, 2009 to March 18, 2009. Meanwhile, upon the rehabilitation of the match, Nonindicted Company 1 requested the return of the remaining 10 households to Defendant 4, and Defendant 4 suspended the re-lease contract with respect to the 10 households.

(6) Around the end of 2008, Defendant 4 proposed that Defendant 1 would act as a broker for the termination of the re-lease contract in the same way with respect to Defendant 1. Accordingly, Defendant 1 and Defendant 2 agreed that the information of the first 26 households, which was revoked with the approval of Nonindicted 2, the representative of Nonindicted 1 Company 2, was transferred to the part of the ▽▽△△△△△ Real Estate Office jointly operated by Defendant 4 and 5. At the time, Defendant 1 and Defendant 2 agreed that the amount of KRW 5 million in the case of the 23-dimensional type among the premium that was received from the re-contractors between Defendant 4 and Defendant 5, and KRW 7 million in the case of the 33-dimensional type, based on the basic amount, the amount of KRW 50 million in the case of the 23-dimensional type, and the amount of KRW 700,000 in the case of the 33-dimensional type type, which exceeds the basic amount, was reverted to Defendant 1 and 2006.

(7) Around July 2009, Defendant 4 agreed to inform Defendant 1 and 2 of the information, and to pay KRW 32 million in the case of the 23th square and KRW 65 million in the case of the 33th square and the 33th square in consideration of the market price at the time. Thereafter, Nonindicted Company 1 concluded a re-lease agreement with Defendant 4 and 5, etc. between September 7, 2009 and September 24, 2009.

(8) Around June 2009, Defendant 2 knew that Defendant 3, who retired while working together with Nonindicted Company 1, was in an economically difficult situation, and informed Defendant 3 of the information of 11 household among the first cancellation households. Defendant 3, at the time of notifying Defendant 4 of such information, was to be paid a total of KRW 70 million from Defendant 4 according to the premium rate. Defendant 4 separately agreed to provide Defendant 2 with KRW 3 million per household. Thereafter, Nonindicted Company 1 concluded a re-lease agreement with Defendant 4 with regard to 10 households among the above 11 households (However, Defendant 2 received KRW 30 million only for the remaining 27 households less the premium rate of KRW 30,000,000,000).

(9) As above, the sub-contractor who entered into a sub-lease contract with the non-indicted company 1 through the brokerage of the defendant 4, 5, etc., prepared a lease contract with the non-indicted company 1 as the lessor at the office of the business branch of the non-indicted 1 company, and paid the relevant premium to the broker. In addition, as to the defendant 4, who was paid a premium through other intermediaries or through employees of △△ real estate or the ▽▽▽▽▽△△△ real estate through the defendant 1 and 2, remitted the total amount of one billion won to the accounts designated by the defendant 1, 2, and 3 from January 14, 2009 to October 12, 2009, according to the terms of each of the above agreements with the defendant 1 and 2, it was not revealed that the timing of receiving the premium was different for each transaction under a contract, and therefore, certain details of remittance was not clarified.

(10) In addition, Nonindicted Company 1’s private rules prohibit the conduct of profit-making or unfair benefit to others against the company’s interests, and the conduct of giving and receiving cases from the company’s customer.

(11) The above apartment houses are constructed for the purpose of lease by Nonindicted Company 1, and among them, are deemed to fall under the publicly constructed rental housing in the case of the commercial zone apartment houses. The standards for the terms and conditions of lease, such as the qualifications, methods of calculation, deposit money, and rent, are set for rental housing, and the obligation to report on the terms and conditions of lease is imposed for certain public rental housing units. In addition, in the case of the publicly constructed rental housing constructed after obtaining approval for a business plan under the relevant Acts and subordinate statutes, such as the Housing Act, the first rental deposit and rent shall not exceed a certain standard rental deposit and standard rental fee, and are regulated on the terms and conditions of rental housing units in accordance with the purport of the former Rental Housing Act for the purpose of stabilizing the residential life of the people.

C. Examining the above facts in light of the legal principles as seen earlier, although the defendants could have concluded the termination household's successful lease contract as a result of the promotion of the business of re-lease against the termination household among the above rental apartment units of the non-indicted company 1 in cooperation with each other, Defendant 1 and 2, an employee of the non-indicted company 1, who is an employee of the non-indicted company 1, engaged in the rental sale business, shall endeavor to execute the lease under the conditions favorable to the non-indicted 1, within the extent prescribed by the Rental Housing Act and subordinate statutes, and shall not accept money and valuables from the non-indicted 1, the seller of the non-indicted company, in the course of re-lease contract, in addition to the sale price originally planned in the process of the re-lease contract, in a case where he receives premium equivalent to the premium from the re-contractor, the dispute caused by the premium, tax burden, and return at the time of the cancellation, or the adverse effect on the trust and reputation in the process of the sale of the non-indicted company 1, after obtaining prior approval or ex post facto approval.

Nevertheless, Defendant 1 and Defendant 2, an employee of Nonindicted Company 1, received a solicitation from Defendant 4 and 5, the broker, to grant a right to the brokerage of the re-lease contract under the proposal that he/she would distribute the premium to him/her while carrying out the affairs of the re-lease contract, and made him/her exclusively take charge of the brokerage business so that he/she can exclusively acquire the brokerage fee in addition to the deposit deposit from the re-contractor without obtaining specific authorization from the president, etc. of Nonindicted Company 1, and was divided into certain standards. Accordingly, it is reasonable to deem that the part of the premium he/she received in return for the illegal solicitation in violation of social rules or the principle of good faith and thus, it constitutes a violation of trust and good faith (see Supreme Court Decision 2008Do6987, Feb. 11, 2008).

D. Nevertheless, the lower court determined otherwise, based on the following circumstances: (a) the Defendants agreed to the interests of the Defendants seeking economic benefits through the sale of the right to lease of the cancelled household; (b) the amount received between the Defendants was not the money separately provided by Defendant 4, but the amount distributed to Defendant 1, etc. is much more than the amount distributed to Defendant 4 and 5; and (c) Defendant 1 decided the distribution rate based on the premium rate formed at the time of trading four times; (d) Defendant 4 led to such matters; and (d) Defendant 4 settled premium by way of remitting the relevant money to Defendant 1, etc. according to the agreed distribution rate based on the “number of households concluded by the de facto re-lease agreement” based on the circumstances as indicated in the judgment, such as the Defendants appears to have committed the same crime with the perception that the Defendants granted and acquired the compensation in relation to Defendant 1 and 2’s duties by illegal solicitation.

However, as seen above, since the premium received by Defendant 4 and 5 was generated in the course of the instant apartment replacement contract, and only a broker has to be processed pursuant to the delegation and instruction of Nonindicted Company 1, and as long as part of the price was paid to Defendant 1 and 2 as the price for the acquisition of the premium and the price was paid to Defendant 1 and 2, it shall be deemed to be in violation of the company rules or unfair profits. Although Defendant 1, 2, and 3 accounts for a considerable ratio of the premium among the premium, even if Defendant 1 et al. led to the decision, it shall not be deemed to have acquired the property in return for an unlawful solicitation contrary to the social rules or the principle of good faith (see Supreme Court Decision 2008Do6987, Dec. 11, 2008), it cannot be said that the delivery and receipt of the money did not have any awareness about it. Therefore, on the grounds of the lower court’s reasoning, the crime of misappropriation does not interfere with the establishment of the crime of misappropriation.

E. Ultimately, the above judgment of the court below is erroneous in the misapprehension of legal principles as to the person who administers another's business in the crime of giving or receiving property in breach of trust and the acquisition of property or property benefits in consideration of illegal solicitation and the acquisition of property or property benefits in consideration, which affected the conclusion of judgment

However, according to the records, at the court of first instance, Defendant 4 and Defendant 2 stated in the court of first instance that part of the premium was entered into the non-indicted 1, and that the account entered into the non-indicted 1 and the account entered into the non-indicted 4 was separately known, and Defendant 4 et al. transferred the premium by dividing it, but the money entered into the company's share account was also Defendant 1 and 2 et al. The statement was made. If the contents of the statement were to be true, Defendant 4 and 5 may think that the premium portion transferred to the non-indicted 1's account belongs to the non-indicted 1. As such, with respect to that part, it cannot be deemed that Defendant 4 and 5 delivered the premium amount to Defendant 1 and 2 et al. under the pretext of solicitation. Therefore, the court below should clearly state the circumstances and details of the distribution among the above defendants and make an illegal solicitation.

2. As to the ground of appeal on the violation of the Business Affairs of Licensed Real Estate Agents and Report of Real Estate Transactions Act

A. The court below accepted the judgment of the court of first instance that held that it is difficult to view the instant premium as a brokerage commission paid by the re-contractor in return for the intermediary act by Defendant 4 and 5, because the re-contractor paid the price in excess of the market price at the time in excess of the sale price, etc., and that it is difficult to view it as the brokerage commission paid by the re-contractor in return for the intermediary act by Defendant 4 and 5, and affirmed the judgment of the court of first instance that acquitted the facts charged in violation of the Business Affairs of Licensed Real Estate Agents and Report of Real Estate Transactions Act on the ground that there is no proof

Examining the reasoning of the lower judgment in light of the evidence duly admitted, the lower court did not err by misapprehending the legal doctrine regarding the meaning of “mediation commission” and “transaction amount” under the Licensed Real Estate Agents’ Business Affairs and Report of Real Estate Transactions Act, contrary to what is alleged in the grounds of appeal.

B. Meanwhile, the prosecutor asserts in the grounds of appeal that the premium paid by the sub-contractors is not attributed to Nonindicted Company 1, a lessor, and is attributed to Defendant 4 and 5, a broker. However, the above argument is premised on the fact that Defendant 4, etc. received part of the transaction amount to be paid to Nonindicted Company 1, and the contract party that paid the brokerage commission is Nonindicted Company 1. Therefore, it is different from this part of the facts charged that the prosecutor received the brokerage commission from the sub-contractors, and it does not constitute a legitimate ground of appeal since it can be said that the aforementioned decision by the court below is not a legitimate ground of appeal, since it is not a ground of appeal because it is a new argument that the prosecutor took the brokerage commission from the sub-contractors as the grounds of appeal or the court below did not

3. Conclusion

Therefore, among the judgment of the court below, the part on the receipt of a breach of trust against Defendant 1, 2, and 3 and the part on the receipt of a breach of trust against Defendant 4 and 5 are reversed, and these parts of the case are remanded to the court below for further proceedings consistent with this Opinion. The remaining appeals are dismissed. It is so decided as per Disposition by the assent of all participating Justices

Justices Shin Young-chul (Presiding Justice)