The judgment below

The part against the defendant shall be reversed.

A defendant shall be punished by imprisonment for one year.

except that this judgment.

1. Summary of grounds for appeal;

A. The Defendant asserts the mistake of facts is nothing more than communicating to J Co., Ltd. operated by B outside of the prosecution to inquire of the market trends on the selection of a commemorative delivery company and the purchase goods, and there is no warning that B would select a commemorative delivery company or would request the case, the selection of a commemorative delivery company was conducted by open bidding, and the selection of a commemorative delivery company was conducted fairly by means of public bidding, and the case of B and P, other than the prosecution, did not require the Defendant to do so. Thus, there is no illegal solicitation.

B. The sentence of the lower court (one year of imprisonment, two years of suspended execution, and 200 hours of community service order) is too unreasonable.

2. When acquiring property or pecuniary advantage in return for an illegal solicitation in relation to the determination duty on the assertion of mistake of fact, the crime of taking property in breach of trust is established, and the crime of taking property in breach of any duty is not established unless an illegal solicitation is accepted between a donor of property or pecuniary advantage and a purchaser of property or pecuniary advantage.

Here, “illegal solicitation” does not necessarily require that it constitutes the substance of occupational breach of trust, and it is sufficient that it goes against social rules or the principle of good faith. In determining it, the contents of the solicitation, the amount of the consideration related thereto, the form, and the integrity of transactions, which are legal interests, should be comprehensively considered, and there is no need to explicitly make such solicitation.

In addition, it acquired ex post facto property or financial benefits in return for an illegal solicitation.

Even if property or property gains are the price for solicitation, the crime of taking property in breach of trust is established as long as the other party receives property or property gains from the other party in return for solicitation (see Supreme Court Decision 2011Do1174, Nov. 14, 2013, etc.).