The judgment of the court below is reversed.

A defendant shall be punished by imprisonment for three years.

70,000,000 won shall be additionally collected from the defendant.

1. Summary of grounds for appeal;

A. Although the Defendant received KRW 30 million from G, the lower court convicted him of this part of the facts charged even though the Defendant borrowed and repaid the said money after borrowing from G, and even if the Defendant did not receive illegal solicitation at the time of receiving the said money, the lower court erred by misapprehending the facts or by misapprehending the legal doctrine, thereby adversely affecting the conclusion of the judgment.

B. In light of the overall circumstances of the instant case of unfair sentencing, the sentence imposed by the lower court on the Defendant (five years of imprisonment, etc.) is too unreasonable.

2. Determination

A. In determining the misunderstanding of facts and misapprehension of legal principles as to the assertion of misunderstanding of facts, if the recipient claims that he/she received the money from the person who received the money while he/she borrowed the money from the person who received the money, the question of whether the borrower actually borrowed the money should be determined by comprehensively taking into account all objective circumstances revealed by evidence, such as the motive, reason and method of delivery of the money from the person who received the money, the relationship between the person who received the money and the person who received the money, the position and occupation, the necessity of borrowing the money, the possibility of borrowing the money from the person other than the person who received the money, the amount and circumstances of borrowing the money, the economic situation of the person who received the money, the economic situation of the person who received the money, whether the money was provided a security, the repayment period and interest agreement, the possibility of compulsory execution, etc.

In addition, 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 obtains property or financial benefits in return for an illegal solicitation in connection with his/her duties. The term "duty" refers to the business entrusted by a person who administers another's business, but it includes not only the original business due to such entrustment but also the business within the scope closely related thereto.