[1] Whether the crime of taking property in breach of trust can be established where a person who administers another's business obtains property or property benefits from another's business, even if he/she received an illegal solicitation as to his/her business (negative)

[2] The case denying the establishment of a crime of taking property in breach of trust in a case where the president of a cooperative received a cash of KRW 30 million from a planning company for acting as an agent of a cooperative's own festival under the control of the cooperative and used it as operating expenses of the cooperative

[1] The crime of taking property in breach of trust under Article 357 (1) of the Criminal Act is established where a person who administers another person's business obtains property or financial benefits in return for an illegal solicitation in connection with his/her duties. The crime of taking property in breach of trust under Article 357 (2) of the Criminal Act is established where a person who administers another person's business gives property or financial benefits under Article 357 (1) of the Criminal Act. The crime of taking property in breach of trust is not established where a person who administers another's business obtains property or financial benefits from another person

[2] In a case where the president of a cooperative promises to pay expenses for the operation of a cooperative from a company selected as a final planning company in the course of selecting a planning company for a cooperative's own festival under the control of the cooperative, and upon the completion of the festival, received cash of KRW 30 million as expenses for the operation of the cooperative and used them as expenses for the operation of the cooperative, the case holding that the crime of taking property in breach of trust is committed on the ground that it is not for the personal interest

[1] Article 357 of the Criminal Act / [2] Article 357 of the Criminal Act

[1] Supreme Court Decision 2000Do4700 Decided February 9, 2001 (Gong2001Sang, 684) Supreme Court Decision 2004Do2581 Decided December 22, 2006 (Gong2007Sang, 245) Supreme Court Decision 2006Do3504 Decided March 27, 2008 (Gong2008Sang, 627)

Defendant

Defendant

Law Firm Barun, Attorneys Kim Jung-soo et al.

Suwon District Court Decision 2005No2754 decided Jan. 25, 2006

The judgment of the court below is reversed, and the case is remanded to Suwon District Court Panel Division.

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. Regarding ground of appeal No. 1

Examining the evidence duly admitted by the court below in light of the records, the court below's decision that found the defendant, in collusion with other directors, received a monetary amount of KRW 30 million from Co-defendant 3 in return for illegal solicitation is proper, and there is no error in violation of the rules of evidence as alleged in the grounds for appeal.

2. Regarding ground of appeal No. 2

The crime of taking property in breach of trust under Article 357 (1) of the Criminal Act is established where a person who administers another person's business obtains property or financial benefits in exchange for an unlawful solicitation in connection with his/her business. The crime of taking property in breach of trust under Article 357 (2) of the same Act is established where a person who administers another person's business gives property or financial benefits under Article 357 (1) of the same Act. Even if a person who administers another's business receives an illegal solicitation in connection with his/her business, the crime is not established where a person acquires property or financial benefits to another person, not his/her own business (see Supreme Court Decisions 200Do4700, Feb. 9, 2001; 2004Do2581, Dec. 22, 2006).

According to the records, the defendant's business cooperative (hereinafter "cooperative") with the chief director of the board of directors is responsible for the 7th (name omitted) festival (16 days from September 1, 2004 to September 26, 2004) festival (16 days from September 2004) and started the process of selecting a planning company to act as proxy for the above event on April 1, 2004. The board of directors of the cooperative agreed to use approximately 7% of the festival expenses (30 million won) from the company selected as the planning company of the above festival at the time to use them as a candidate for the management expenses of the cooperative, the non-indicted 1 corporation (the representative of the court of first instance 3) and (2) the non-indicted 1 corporation and the non-indicted 1 corporation (the defendant was given a promise to subsidize the operating expenses of the cooperative if selected as the final planning company from the above two companies to 00,000 won, the non-indicted 1 corporation's representative director was finally selected as the head of the cooperative.

Therefore, the defendant is not for personal interests, but for the co-defendant 3 of the first instance court as the president of the union, which received money of KRW 30 million from co-defendant 3 for the operation expenses of the union, and thus, it cannot be deemed as a case where "the person who administers another's business obtains property or property benefits in return for an illegal solicitation in violation of his/her duties". Nevertheless, the judgment below which made a different judgment is erroneous in the misunderstanding of legal principles as to the crime of taking property in breach of trust or by misunderstanding facts in violation of the rules of evidence, which affected the conclusion of the judgment. The

3. Conclusion

Therefore, without examining the remaining grounds of appeal, the judgment of the court below is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Si-hwan (Presiding Justice)