[1] Whether the crime of taking property in breach of trust is established in a case where the duty to be in charge in the future acquired property or pecuniary gains in return for an illegal solicitation and actually takes charge of the duty (affirmative)

[2] The meaning of and criteria for determining "illegal solicitation" in the crime of taking property in breach of trust

[1] Article 357 (1) of the Criminal Code / [2] Article 357 (1) of the Criminal Code

[1] Supreme Court Decision 2009Do4791 Decided April 15, 2010 / [2] Supreme Court Decision 2008Do6987 Decided December 11, 2008 (Gong2009Sang, 62) Supreme Court Decision 2010Do10290 Decided August 18, 201 (Gong201Ha, 1960) Supreme Court Decision 201Do536 Decided March 29, 2012

Defendant

Defendant

Law Firm Doz. et al.

Suwon District Court Decision 2012No934 decided October 18, 2012

The appeal is dismissed.

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

1. In full view of the statements, etc. at the first instance court of Nonindicted 1, 2, and 3, the lower court determined that the Defendant could recognize the fact that the Defendant received a solicitation from Nonindicted 1, who was instructed by Nonindicted 2 on December 18, 2006 or around December 19, 206, for the “mission” from Nonindicted 1.

The argument in the grounds of appeal in relation to this part is that the court below made a false fact-finding under the credibility of Non-Indicted 2 and 1, although there was no fact that the defendant received the above solicitation from Non-Indicted 1.

However, insofar as the recognition of facts and the selection and evaluation of evidence, which are the premise thereof, do not deviate from the bounds of the principle of free evaluation of evidence, they belong to the discretionary authority of the fact-finding court. In light of the records, even after examining the reasoning of the judgment below, there is no reason to find that the judgment of the court below exceeded the bounds of the principle of free evaluation of evidence in violation of logical and empirical rules. Ultimately, the above ground of appeal merely criticizes matters concerning the fact-finding which

2. If a person who administers another’s business falls under the scope of the business based on the trust relationship, and has acquired property or pecuniary benefits in return for an unlawful solicitation with respect to the duties that can reasonably be expected to be in charge in the future, and subsequently practically takes charge of the duties regarding the solicitation, the integrity of the person who administers another’s business is thereby harmed, and thus, constitutes the crime of taking property in breach of trust (see Supreme Court Decision 2009Do4791, Apr. 15, 2010, etc.).

The lower court determined that the Defendant was in the position of “a person who administers another’s business” in relation to Nonindicted Co. 4’s relationship with the Nonindicted Co. 4, on the grounds of the circumstances indicated in its reasoning, based on the adopted evidence, such as the statement in Nonindicted Co. 5’s first instance court, which was in charge of duties related to the appointment of an evaluation committee member, even if the Defendant was not notified of the appointment of the evaluation committee member at the time of receiving the said solicitation from Nonindicted Co. 1.

In light of the above legal principles and records, the above judgment of the court below is just and acceptable. In so doing, it did not err by misapprehending the legal principles as to "a person who administers another's business" or exceeding the bounds of the principle of free evaluation of evidence, which is the requirement for the crime of taking property

3. 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 an illegal solicitation is not established unless there is an illegal solicitation between a donor of property or pecuniary benefits and a purchaser of property. Here, "illegal solicitation" does not necessarily require it to the extent that it constitutes a crime of occupational breach of trust. If it is against social rules or the principle of trust and good faith, it is sufficient to determine that it is against the contents of the solicitation, the amount of relevant consideration, form, and integrity of transactions, which are protected legal interests, should be comprehensively examined (see Supreme Court Decision 2008Do6987, Dec. 11, 2008, etc.).

The lower court determined that, in the first instance court, Nonindicted 2, the representative director of the ○○ Technology, participated in the second project of this case, as follows: (a) the first evaluation of the first instance, passed only the above △△ consortium and the △△△ consortium; (b) the two meetings finally passed the second evaluation; (c) as such, Nonindicted 1 personally asked to the effect that the Defendant, who was finally confirmed to be selected as an evaluation committee at the time of the first evaluation and day, would personally change the points of the △△ consortium with the △△ consortium to which the ○○ Technology belongs; and (d) Nonindicted 2, the representative director of the ○○ Technology, was in violation of the first instance court’s agreement to the effect that “△△△△△△△△△△△△△△△△△△△△△△△△△△’s offering of points favorable to the negotiation; and (d) Nonindicted 2, the Defendant, who was selected as an average of 5 △△△△△△△△△△’s offering.”

In light of the above legal principles and records, the above judgment of the court below is just and acceptable, and there is no violation of law such as misunderstanding of the legal principles or free evaluation of evidence concerning "illegal solicitation" as alleged in the ground of appeal.

4. In full view of the circumstances acknowledged by its adopted evidence, the lower court determined that Nonindicted Party 1 could be deemed as the Defendant’s consideration for solicitation, and furthermore, it could be deemed that there was a mutual understanding on the fact that it was a consideration for solicitation or a perception of the Defendant.

In light of the relevant legal principles and records, this part of the judgment of the court below is just and acceptable, and there are no errors of law such as exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules.

5. Accordingly, the appeal shall be dismissed by the assent of all participating Justices. It is so decided as per Disposition.

Justices Kim Chang-suk (Presiding Justice)