[1] The meaning of "a person who administers another's business", "a person who administers another's business" and "illegal solicitation" in the crime of taking property in breach of trust

[2] Whether the crime of taking property in breach of trust constitutes the elements for the crime of taking property in breach of trust (negative)

[3] In a case where the defendants, who are employees of a housing association apartment construction company, acquired the right to sell the above apartment at the request of the head of the association to impliedly purchase a civil petition or to consider the union's position, the case affirming the judgment below which found the defendants to have committed a breach of trust

[1] The "person who administers another's business" as the principal agent of the crime of taking a breach of trust under Article 357 (1) of the Criminal Code refers to a person who is acknowledged to have a fiduciary relationship to handle the business in light of the principle of trust and good faith with another person. It does not necessarily require that a third party has a right to the business in an external relationship with another person. In addition, the business is not required to be a comprehensive entrusted business, and the ground for the conduct of business, i.e., legal act, custom, or business management, may occur. "the duty" refers to the business entrusted by a person who administers another's business, and it includes not only the original business, but also the business within the scope closely related to the former, but also the subsidiary's own business. The "illegal solicitation" does not necessarily require to be included in the degree of occupational breach of trust, and if it is contrary to social rules or the principle of trust and good faith. When determining it, it does not necessarily require a comprehensive consideration of the contents and amount of the solicitation and related consideration of transactions.

[2] The crime of taking property in breach of trust is established when a person who administers another's business acquires property, etc. in exchange for an illegal solicitation in relation to his/her duties, and it does not require that the act of taking property in breach of trust or the principal be injured

[3] In a case where the defendants, who are employees of a housing association apartment construction company, obtained the right to sell the above apartment without reporting a civil petition for double-sale from the association head to the company, in consideration of the union's position when they implied or take measures for double sale, the case affirming the judgment below which acknowledged the defendants' crime of breach of trust.

[1] Article 357 (1) of the Criminal Act / [2] Article 357 (1) of the Criminal Act / [3] Article 357 (1) of the Criminal Act

[1] Supreme Court Decision 2005Do6433 Decided March 24, 2006, Supreme Court Decision 2008Do6987 Decided December 11, 2008 (Gong2009Sang, 62), Supreme Court Decision 2008Do9602 Decided December 24, 2008, Supreme Court Decision 2010Do3399 Decided May 27, 2010, Supreme Court Decision 2010Do7380 Decided September 9, 2010 / [2] Supreme Court Decision 84Do1906 Decided November 27, 1984 (Gong1985, 106)

Defendant 1 and two others

Defendants

Law Firm (LLC), Kim & Lee LLC, Attorneys Bailment et al.

Supreme Court Decision 2010Do370 Decided April 29, 2010

Seoul High Court Decision 2010No1139 decided August 20, 2010

All appeals are dismissed.

1. Determination on Defendant 1 and 2’s grounds of appeal

Article 357(1) of the Criminal Act provides that "a person who administers another's business" refers to a person who is deemed to have a fiduciary relationship to handle the business in light of the principle of trust and good faith with another person in an internal relationship with another person. It does not necessarily require that the business belongs to a comprehensive entrusted business. In addition, the ground for the conduct of business, i.e., legal act, custom, or business management, may occur through the provisions of Acts and subordinate statutes, and the ground for the conduct of a fiduciary relationship, i.e., the occurrence of a fiduciary relationship, and in the crime of breach of trust, "the conduct of duties" refers to the business entrusted by a person who administers another's business, but it includes not only the original business caused by the entrustment relationship, but also the business closely related thereto within the scope of such entrustment relationship, and it does not necessarily include a person who administers the business directly or indirectly as its subsidiary institution, but also includes a person who has a fiduciary relationship with another person in an internal relationship with another person, and it does not necessarily require to be determined in accordance with the principle of trust and good faith (see Supreme Court Decision 200.

In addition, the crime of taking property in breach of trust is established when a person who administers another person's business acquires property, etc. in exchange for an illegal solicitation in connection with his/her duties, and it does not require any act of taking property in breach of trust or to inflict damage on the principal (Supreme Court Decision 84Do1906 delivered on November 27, 1984).

In light of the above legal principles and records, the court below found Defendant 1 and Defendant 2 guilty of the crime of taking property in breach of trust against Defendant 1 and 2 on the ground that the court below obtained the right of sale of the apartment association of the non-indicted 1 and 2 by acquiring the right of sale of the apartment association of the non-indicted 1 and 2, and found Defendant 1 and 2 guilty of the crime of taking property in this case on the ground that the crime of taking property in breach of trust against the non-indicted 1 and 2 was just, and there was no violation of the rules of evidence or misapprehension of legal principles, etc., as otherwise alleged in the grounds of appeal, although the court below did not report the civil complaint against the non-indicted 1's double sale of the housing association of the non-indicted 1 and 2 to the non-indicted 1 to the non-indicted 2 corporation without reporting it to the non-indicted 2 corporation.

2. Judgment on Defendant 3’s grounds of appeal

Examining the reasoning of the judgment below in light of the evidence duly admitted by the court below, the court below is just in finding that Defendant 3 received the money of KRW 10 million from Nonindicted Co. 3’s non-indicted 4’s non-indicted 3’s non-indicted 4’s non-indicted 3’s non-indicted 3’s non-indicted 3’s non-indicted 3’s illegal solicitation and found Defendant 3 guilty of the facts charged of the crime of taking

3. Conclusion

Therefore, all appeals are dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee In-bok (Presiding Justice)