[1] The principal agent of the crime of taking property in breach of trust under Article 357 (1) of the Criminal Act and the case where a person who received an illegal solicitation in relation to his/her duties obtains property or property benefits from another person can be established

[2] The case holding that where a graduate student made a solicitation to the defendant who is a professor of another university through a guidance professor "to obtain degrees without problems by providing convenience, such as acting on behalf of the professor for the preparation of a dissertation and preparing major parts of the thesis" and delivered money and valuables, the above solicitation does not constitute an illegal solicitation, but the thesis guidance and examination work for other graduate students cannot be deemed as the defendant's business, and the defendant cannot be deemed as having conspiredd to receive the guidance professor's breach of trust

[1] The crime of taking property or property in breach of trust under Article 357 (1) of the Criminal Code is established when a person who administers another person's business obtains property or property benefits in exchange for an illegal solicitation in connection with his/her duties, and, in principle, a person who does not have such status may be the subject of the crime. A person who administers another person's business may be the subject of the crime only when he/she processes the crime against a person who administers another person's business. Even if a person who administers another's business received an illegal solicitation in relation to his/her duties, if a person renders another person acquire property or property benefits, it is obvious that the crime is not established. However, the crime can be established only where there is a relation that can be evaluated as being directly received by a person who receives an illegal solicitation in return for property

[2] The case holding that where a graduate student made a solicitation to the defendant who is a professor of another university through a guidance professor to offer convenience, such as acting on behalf of the professor for the preparation of a dissertation and preparing main parts of the thesis, and delivered money or valuables, the above solicitation does not constitute an illegal solicitation, but the thesis guidance and examination work for the graduate student of another university cannot be deemed as the defendant's business, and it is difficult to view that the defendant conspiredd to take part in the act of taking part in the guidance professor's breach of trust

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

[1] Supreme Court Decision 98Do663 delivered on January 15, 199 (Gong1999Sang, 315) Supreme Court Decision 2005Do643 delivered on March 24, 2006, Supreme Court Decision 2004Do2581 Delivered on December 22, 2006 (Gong2007Sang, 245)

Defendant

Defendant

Attorneys Yellow-nam et al.

Jeonju District Court Decision 2005No1381 Decided May 12, 2006

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

The grounds of appeal are examined.

1. Regarding ground of appeal No. 1

In the crime of taking property in breach of trust, illegal solicitation refers to a solicitation that goes against the social norms and the principle of trust and good faith, and in determining this, comprehensive consideration of the contents of the solicitation, the amount, form, and integrity of the business administrator, which is the legal interest protected, should be comprehensively considered, and such solicitation does not necessarily require an explicit statement (see Supreme Court Decision 2004Do6646, Jan. 14, 2005).

The court below accepted the adopted evidence of the court of first instance and found facts as stated in its reasoning, and subsequently ordered the Defendant, through the instruction professors of the university, to the effect that “to have a degree acquire a degree without problem by providing convenience, such as acting as an agent for experiment necessary for preparation of a dissertation, preparing the main part of the thesis, etc.,” by Nonindicted Party 1, etc. (hereinafter referred to as “the graduate students of ○○ University”) who are attending a graduate school or doctoral degree course at ○ University, Han University University’s graduate school” was an unlawful solicitation contrary to social norms or the principle of good faith.

However, in the crime of taking property in breach of trust under Article 357 (1) of the Criminal Act, "illegal solicitation" should be limited to the duties of a person who administers another's business, and in this case, although the defendant does not correspond to "a person who administers another's business," who is the subject of the crime of taking property in breach of trust, it would be wrong that the court below decided that the illegal solicitation was made in connection with the defendant's business (hereinafter in this regard, the court below will be examined again). However, in light of the above legal principles, it is erroneous that ○○ graduate school students as professors of the university, as professors of the university, and as examiners of the thesis, request the non-indicted 2, etc., who are the thesis, to the effect that "to obtain degrees without problem, by providing convenience, such as acting as a professor necessary for preparing a dissertation and preparing the main part of the thesis, etc." constitutes an illegal solicitation contrary to

2. Regarding ground of appeal No. 2

A. The court below determined that the defendant was a co-principal of the crime of taking property in breach of trust on the ground that the defendant, who is a professor of △△ University, was aware of the act of taking property in breach of trust by the above graduate students, and did not merely act as an agent for an experiment upon the request of the guidance professor of the graduate students of ○○ University, who is a supporting professor, and provided the results of the experiment to the above graduate students. The defendant actively used the test results as the defendant's laboratory research results, and the defendant received direct money from the above graduate students without going through the guidance professor, and the defendant received money from the above graduate students on 71 occasions without going through the instruction professor, and the defendant was acting for an experiment on behalf of the above graduate students. Thus, the court below determined that the defendant was a co-principal of the crime of taking property in breach of trust.

B. However, we cannot agree with the above judgment of the court below.

(1) The crime of taking property or property in breach of trust under Article 357 (1) of the Criminal Act is established when a person who administers another person's business obtains property or property benefits in exchange for an illegal solicitation in connection with his/her duties, and in principle, he/she is a person who administers another person's business. A person who does not have such status can be a principal agent only when he/she processes a crime committed by a person with his/her status (see Supreme Court Decision 2005Do6433, Mar. 24, 2006). However, according to records, at the time of the instant case, the Defendant only worked as a professor of △△ University, and was not in a position to affect the guidance and examination of the doctor's degree thesis, and thus, the Defendant did not directly participate in the examination of the thesis as a graduate student of ○○ University, and thus, even if the Defendant did not prepare and execute the thesis by proxy, he/she cannot be deemed to have prepared and executed the thesis as an agent or examination committee's work on behalf of another person.

(2) Furthermore, we examine whether the Defendant can be viewed as a co-principal who jointly processed the crime of taking property in breach of trust by Nonindicted 2, etc., who is a guiding professor and the thesis examiner.

(A) First of all, the crime of taking property or property in breach of trust under Article 357(1) of the Criminal Act is established when a graduate school professor of ○○ University, which recognized that the court below conspired with the defendant, acquires property or property benefits in return for an illegal solicitation in relation to his/her duties. Even if a person who administers another's business received an illegal solicitation in relation to his/her duties, if a person who administers another's business obtains property or property benefits from another person, it is obvious that the crime is not established. However, the crime can be established only in cases where a relationship can be assessed as being directly received by a person who received an illegal solicitation in return for property or property benefits by social norms (see Supreme Court Decision 2004Do2581, Dec. 22, 2006).

However, according to the reasoning of the judgment below, it seems that the above graduate students were included in the case of remitting money directly to the defendant without going through the instruction professor. [The first interrogation protocol of the defendant, which is the evidence duly adopted by the original court, the interrogation protocol of the prosecutor's office against the defendant, and the deposit statement of the prosecutor's office against the non-indicted 3 and 2 (the trial record 1126 pages), etc. of the attached Table 3 (the non-indicted 4), 4 (the non-indicted 5), 33 (the non-indicted 6), 34 (the non-indicted 7), 48 (the non-indicted 8), 66 (the non-indicted 9), and 67 (the non-indicted 7), etc.) of the court below's judgment that the defendant received money from the non-indicted 10 (the non-indicted 12 through 16, 53 through 58) are not related to the above defendant's instruction student or the defendant's 10th of his own property.

However, even after examining all the evidence submitted by the prosecutor, there is no such close relationship between Nonindicted 10 professors, etc. and the Defendant, or there is no evidence to acknowledge that they conspired in advance with the Defendant regarding the crime of the breach of trust taking property in this case. Rather, according to the records, Nonindicted 10 professors, etc. can find out the so-called “testing expenses” and find out whether they merely performed the role of the sender at the request of the above graduate school students, and find it difficult to view that there was no intention to acquire property or property benefits.

(B) Next, in the case of criminal facts in which the principal offender’s act appears to constitute the crime of taking in breach of trust, it is necessary to establish the joint principal offender under Article 30 of the Criminal Act as a subjective element, and have committed the crime through the functional control based on the joint doctor. Here, the intention of joint process is insufficient to recognize another person’s criminal act and to accept it without restraint, and it is a single act to commit a specific criminal act with another person’s criminal intent, and to transfer his/her criminal intent to the execution by using another person’s criminal act (see Supreme Court Decision 2002Do995, Jun. 24, 2004).

However, even after examining all the evidence submitted by the prosecutor in the instant case, insofar as there is no evidence to acknowledge that the Defendant and the above teaching faculty have formed a community of crime to form a whole for the instant criminal act, such as prior consultation on the distribution of property or pecuniary gains acquired by the instant criminal act, etc., it is insufficient to recognize that the above circumstances cited by the court below are sufficient to recognize that the Defendant conspiredd with the guiding teaching faculty members of the above graduate schools to receive property in breach of trust. Accordingly, there is room to view that the Defendant is only an aiding and abetting agent for the crime of taking property in breach of trust, which strengthens the resolution of guiding faculty members on taking property in breach of trust and facilitate them.

C. Nevertheless, without sufficiently examining the above points, the court below acknowledged the defendant as a joint principal offender of each crime of breach of trust of this case. The court below erred by failing to exhaust all necessary deliberations or by misapprehending the legal principles on the establishment of the crime of breach of trust of this case and the joint principal offender, which affected the conclusion of the judgment.

The ground of appeal pointing this out is with merit.

3. Therefore, without examining the remaining grounds of appeal, the judgment of the court below is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Nung-hwan (Presiding Justice)