[1] The meaning of illegal solicitation in the crime of giving rise to breach of trust and the method of solicitation

[2] The case holding that it constitutes a crime of giving property in breach of trust where the above representative director allows the head of the reconstruction association to operate the restaurant of the reconstruction construction site without compensation on the ground that there is no clear evidence that there was an unlawful solicitation between the president of the reconstruction association and the representative director of the reconstruction association and the representative director of the reconstruction company, but it is reasonable to conclude that there was an implied solicitation to the effect that there was an implied solicitation in favor of the construction company in the progress and settlement of accounts of the reconstruction construction, etc., and since

[1] Article 357 of the Criminal Act / [2] Article 357 of the Criminal Act

[1] Supreme Court Decision 95Do2090 delivered on October 11, 1996 (Gong1996Ha, 3366), Supreme Court Decision 96Do776 delivered on January 24, 1997 (Gong1997Sang, 701)

Defendant

Prosecutor

Attorney Lee Jin-bok

Supreme Court Decision 2004Do2538 Delivered on July 9, 2004

Seoul Central District Court Decision 2004No2706 Decided February 17, 2005

The judgment of the court below is reversed, and the case is remanded to the Seoul Central District Court Panel Division.

1. Summary of the facts charged

The defendant made an illegal solicitation to the non-indicted corporation, the representative director of the non-indicted corporation located in the Seoul Special Metropolitan City, which is the commencement of the reconstruction project (name omitted), to the effect that the non-indicted corporation, the head of the association of the above reconstruction association, in relation to the reconstruction project in March 200, when the problem of increase of the construction cost or settlement of the construction cost arises, he well cooperates with the non-indicted corporation in the progress of the construction or the settlement of the construction cost, such as giving convenience in a favorable direction to the non-indicted corporation. In return, the defendant made the above non-indicted non-indicted corporation to operate the re-building cafeteria without compensation between around that time and January 201.

2. The judgment of the court below

According to the reasoning of the judgment below, since the number of members of the reconstruction association of this case is very small to 28 persons and it is difficult for the head of the association to pay the sales and monthly salary to the head of the association without remuneration, the defendant, the representative director of the construction corporation, should operate the restaurant to a third party for the meal of the members of the construction site at the time of the construction. If the defendant, who is the representative director of the construction corporation, has to operate the restaurant with a third party for the meal of the members of the construction site at the time of the construction, he was merely intended to provide the head of the association having close business cooperation relations in the construction process with a third party for convenience to cover the sales and monthly salary, and in detail, it is not likely that the plaintiff operated the above restaurant in return for any unlawful solicitation, and the expected profits from the operation of the above restaurant do not appear to be large, and there is no evidence to acknowledge that the defendant did not have any unlawful solicitation, in light of the fact that there was no objection against the defendant's association members.

3. The judgment of this Court

However, we cannot accept the above determination by the court below for the following reasons.

Article 357 of the Criminal Code provides that an illegal solicitation is against social norms and the principle of trust and good faith, and in determining this, a comprehensive consideration of the contents and form of the solicitation and the amount and integrity of transactions, which are legal interests protected by the law, shall be given, and such solicitation shall not be explicitly made (see Supreme Court Decisions 95Do2090, Oct. 11, 1996; 96Do776, Jan. 24, 1997, etc.).

However, according to the facts and records of the judgment below, since the former president of the reconstruction association of this case is water from the head of the association on March 8, 1999, the non-indicted 1 was elected from the head of the association around April 20, 201, and the reconstruction association of this case was conducted from the non-indicted 1 to March 15, 2001 after the non-indicted 2 was appointed as the head of the association. The reconstruction association of this case was operated from March 10, 199 to the non-indicted 1's office. The non-indicted 2's request for the above reconstruction association's operation of the reconstruction association's reconstruction association's reconstruction right's reconstruction right's reconstruction right's reconstruction right's reconstruction right's reconstruction right's reconstruction right's reconstruction right's reconstruction right's reconstruction right's reconstruction right's reconstruction right's reconstruction right's non-indicted 1's non-indicted 2's reconstruction right's reconstruction right's reconstruction right's reconstruction right'.

Nevertheless, unlike this, the court below held that the defendant's operation of a brin restaurant which is closely related to cooperation in the construction process by operating it to meet the sales expenses or monthly salary of the head of the association, and that the non-indicted cannot be deemed to have received illegal solicitation as to his duties when acquiring the right to operate the above brin, the court below erred by misapprehending the rules of evidence or by misapprehending the legal principles on the interpretation and application of illegal solicitation stipulated in Article 357 of the Criminal Act, and this affected the conclusion of the judgment. Thus, the prosecutor's ground of appeal pointing this out has merit.

4. Therefore, the lower judgment is reversed, and the case is remanded to the lower court. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Shin Shin-chul (Presiding Justice)