The meaning of "in respect of duties" and "illegal solicitation" in the crime of taking property in breach of trust.

(a) For the crime of taking in breach of trust under Article 357 of the Criminal Code, the term “duty” refers to a duty entrusted by a person who administers another’s business, but includes not only the original duty resulting from such entrustment but also the duties closely related thereto;

B. In the crime of taking property in breach of trust, “illegal solicitation” refers to a solicitation that goes against social norms or the principle of good faith. Therefore, if an interference with an order issued by the head of a bank and the Vice Director of a branch office in charge of deposit, who is ordered by the head of a branch office, to color a person eligible for the loan of small and medium enterprise facilities, is given an implied consent to the loan, and the loan agent received a request from a person ineligible for the loan, and received a delivery of money in return for the said request, the crime of taking property in breach of trust is established.

Article 357 of the Criminal Act

Supreme Court Decision 79Do190 Delivered on October 14, 1980

Defendant

Attorney Park Jin-hun (Sail), Cho Jin-hun, and Decree of the Grounds therefor

Seoul Criminal Court Decision 80No3844 delivered on July 18, 1980

The appeal is dismissed.

The grounds of appeal are examined.

In the crime of taking property in breach of trust under Article 357 of the Criminal Code, the term "in relation to the duties" means the duties entrusted by a person who administers another's business, but it is interpreted to include not only the original duties arising from the entrustment relationship but also the duties closely related thereto.

According to the reasoning of the judgment of the court of first instance cited by the judgment of the court below, the defendant was engaged in an interference with and a vice head in charge of deposit at Hanil Bank Mandong Branch, and on December 178, 1978, the defendant was ordered by the head of the same branch office to see the object of the loan of 30 million won for small and medium enterprise facilities funds allocated to the branch of the branch of the branch of the branch of the branch of the branch of the branch of the branch of the branch of the branch of the branch of the first instance, and interview with related persons. In the process, the loan was granted by Nonindicted 2, a surety in the office of security, because he was necessary for his business funds, but he was not an eligible person for the loan of small and medium enterprise funds, but he was not an eligible person for the loan of 30 million won for the loan of 150,000 won for the loan of 30,000 won funds for small and medium enterprise funds.

Therefore, even if the above loan affairs are not managed by the defendant, it is reasonable to view that the defendant is an employee who is closely related to the color affairs of a person subject to loan ordered by the head of a branch as above, and the decision of the court below with this purport is just, and it is not possible to adopt the theory that the above loan affairs mean only the unique affairs with different opinions.

2. In addition, an illegal solicitation as referred to in the above Article is interpreted to refer to a solicitation that is contrary to social rules or the principle of good faith (see Supreme Court Decision 79Do190, Oct. 14, 1980; 79Do190, Oct. 14, 1980). This case is a solicitation that leads to a disguised loan of a person who is not eligible for a loan of small and medium enterprise funds, as seen above. Thus, the argument that this issue is controversial is groundless.

3. The fact that the defendant received 1,50,000 won in return for the above illegal solicitation as above, and thus, the crime of misappropriation was established. Since all of the money excluding 50,000,000 won is used for the bank's financing expenses, if the crime of misappropriation is established, it shall be limited to 50,000 won. However, since the consumption for the bank is about the content of consumption after the crime was established, there is no relation with the establishment of the crime. Therefore, there is no theory of lawsuit on this point.

Therefore, the appeal is dismissed. It is so decided as per Disposition by the assent of all participating judges.

Justices Jeon Soo-hee (Presiding Justice)