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The judgment of the court below is reversed.
Defendant
A Imprisonment for six months, Defendant B and C shall be punished by a fine of 2,00,000 won.
Reasons
1. Summary of grounds for appeal;
A. In this case of mistake of facts, maintaining a contractual relationship with a trader of K and M’s plastic restaurant does not include Defendant A’s duties.
In addition, Defendant B did not have made an implied solicitation on the request for inspection and return of goods to Defendant A.
Nevertheless, the judgment of the court below which recognized that the maintenance of the contractual relationship with the transaction company is included in the duties of the defendant A and recognized that the defendant B made an implied solicitation to the defendant A is erroneous in the misapprehension of facts, which affected the conclusion of the judgment.
B. Although it is true that Defendant B and C asked Defendant A to consider convenience in examining goods, this is merely an illegal solicitation to the extent that it is well different within the scope of duties.
Nevertheless, the lower court which recognized the establishment of the crime of taking property in breach of trust and the crime of taking property in breach of trust on the premise that there was an illegal solicitation among the Defendants, erred by misapprehending the legal doctrine on the meaning of “illegal solicitation” in the establishment of each of the above crimes, thereby affecting the conclusion of the judgment.
C. The lower court’s sentence of unreasonable sentencing (Defendant A: 10 months of imprisonment, 2 years of suspended sentence, 2 years of additional collection, Defendant B: fine of 5,00,000 won, Defendant C: fine of 4,000,000 won) is too unreasonable.
2. Determination
A. First of all, we examine Defendant A’s duty scope in determining the assertion of mistake of facts.
According to the evidence duly adopted and examined by the court below, it is recognized that Defendant A had a substantial right to make a decision on the selection of an enterprise to deliver goods to each restaurant, the examination of supplied goods, and the request for return of goods while serving in sequence at the “K” and the “M” model restaurant.
In addition, if the defendant has the above substantial decision-making right, each of the above restaurants is a specific trader.