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Defendant
All appeals by prosecutors are dismissed.
Reasons
1. Summary of grounds for appeal;
A. Defendant 1 (the point of occupational breach of trust) and misunderstanding of the legal doctrine, the Defendant was in charge of the field management supervision, and was not in charge of the duties of selecting or recommending a framework contractor. Thus, the Defendant did not have the position of managing another person’s business.
In addition, there is no fact that the Defendant made a contract for construction work with the victim C at KRW 1,300,000,000 per ordinary credit, and then requested the difference of KRW 6,000,000.
Nevertheless, the court below found the Defendant guilty of occupational breach of trust, which is an ancillary charge. Thus, the court below erred by misapprehending the legal principles, thereby adversely affecting the conclusion of the judgment.
2) The punishment sentenced by the lower court (an amount of KRW 3 million) is too unreasonable.
B. Article 312(3) of the Criminal Procedure Act cannot be applied to the statement of E in the police interrogation protocol against the prosecutor (the point of taking place in breach of trust) and the police interrogation protocol against the defendant, and admissibility of evidence should be recognized in accordance with Article 314 of the same Act.
Comprehensively taking account of all the evidence submitted in the original trial, including the above evidence, C’s statement in the court of original trial and the investigative agency, it is recognized that the Defendant acquired property in exchange for an illegal solicitation of the nature, history, and maintenance of the construction contract between E and C, in receiving the difference from E.
Nevertheless, the court below found the Defendant not guilty of the charge of breach of trust, which is the primary charge. Thus, the court below erred by misapprehending the legal principles and thereby affecting the conclusion of the judgment.
2. Determination as to the prosecutor's assertion on the primary charge of violation of trust (the charge of taking property in breach of trust)
A. The crime of taking property in breach of trust under Article 357(1) of the Criminal Act, which is established when a person who administers another’s business obtains property or pecuniary benefits in exchange for an unlawful solicitation as to his/her duties.