[1] Whether the crime of taking property in breach of trust is established in a case where a person acquired property or financial gains in return for an illegal solicitation as to the duty to be in charge in the future and actually takes charge of the duty (affirmative)

[2] The case holding that in case where the defendant, a producer in charge of arts of a broadcasting station, provided opportunities for purchasing stocks, the price of which is expected to be high from an operator of entertainment planning company, and contributed to the artist's entertainment programs, etc. produced by the defendant, or broadcasted music video products, and acquired pecuniary profits by purchasing these stocks, the crime of taking property in breach of trust is established

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

[2] Supreme Court Decision 2009Do5080 Decided November 26, 2009

Defendant

Defendant

Mountainous Law Firm, Attorneys Lee Gyeong-Gyeong et al.

Seoul High Court Decision 2009No391 decided May 8, 2009

The appeal is dismissed.

We examine the grounds of appeal.

The lower court affirmed the first instance judgment convicting the Defendant of the instant charges on the ground that, in light of the various circumstances as indicated in its reasoning, the Defendant, a producer of SBS arts station, received an opportunity to purchase stocks for which considerable market value gains are expected as indicated in its reasoning from Nonindicted 1 and 2, who operated entertainment planning company (hereinafter “instant stocks”), and contributed to the entertainment program in which the Defendant is in charge, or received an implied solicitation for requesting the entertainment planning company to broadcast the music video, and subsequently acquired pecuniary benefits by purchasing the instant stocks, the lower court affirmed the first instance judgment convicting the Defendant of the instant charges.

According to the evidence duly admitted and examined, the defendant has received such solicitation from Nonindicted 1 and 2 prior to the purchase of the shares in this case by contributing to the artist belonging to the defendant's entertainment program, etc. or by broadcasting the musical video, and the defendant received such solicitation even after the purchase of the shares in this case. The defendant has made a majority of the entertainment programs contributed by the artist prior to the purchase of the shares in this case or the musical video broadcasted by the music video, and was involved as producer (PD) or responsible producer (CP) after the purchase of the shares in this case, and the defendant was actually assisted by Nonindicted 1 and 2 by broadcasting the musical video from the music program under his control in accordance with the above solicitation. In light of these circumstances and records, the court below's measures are acceptable, and there is no violation of law by misapprehending the legal principles as to the crime of breach of trust or by violating the rules of evidence, as alleged in the grounds of appeal.

In addition, if a person who administers another person's business falls under the scope of the business based on his trust relationship, and has acquired property or financial benefits in return for an illegal solicitation and has actually been in charge of the duties to be reasonably expected to take charge in the future, then the integrity of the person who administers another person's business is harmed. Thus, even if the defendant was not in charge of such solicitation at the time of receiving such illegal solicitation, according to the above facts, according to the above facts, it can be deemed that the defendant was in charge of the duties related to such solicitation after having acquired financial benefits in return for such illegal solicitation, and it can be deemed that the defendant was reasonably expected to take charge of such solicitation at the time of such solicitation, and thus, the defendant cannot be deemed to be in charge of the violation of trust. The argument in the grounds of appeal on this point is without merit.

Meanwhile, in light of the various circumstances as seen earlier, the issue of this case is different from the Supreme Court Decision 2009Do5080 Decided the Defendant’s ground for appeal.

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

Justices Kim Nung-hwan (Presiding Justice)