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All the judgment below is reversed.
Defendant
A Imprisonment with prison labor of one year and six months, and Defendant B shall be punished by imprisonment with prison labor of six months.
(b).
Reasons
1. Summary of grounds for appeal;
A. (1) Even if Defendants (1) mistake of facts and misapprehension of legal principles (A) have received illegal solicitation in relation to their duties, in a case where a person, who deals with Defendant A’s business, instead of himself, allows another person to acquire property or property benefits, the crime of taking property in breach of trust under the Criminal Act is not established
However, the above defendant used almost KRW 390,000,000,000 in most of the KRW 400,000 received from J as the operating expenses of the G Residential Self-Governing Council (hereinafter “Residential Self-Governing Council”). As to the above KRW 390,000,000, the defendant cannot be deemed to have acquired property in exchange for unlawful solicitation.
On the contrary, the court below erred by misapprehending the facts charged or by misapprehending the legal principles, which affected the conclusion of the judgment, on the ground that the Defendant acquired the entire amount of KRW 400 million.
(B) Defendant B (1) was connected to Defendant A and the J upon the request of the JJ, and there was no conspiracy between Defendant A and Defendant A to commit the crime of taking property in breach of trust.
② Even if a person who administers another’s business receives an unlawful solicitation as to his/her duties, if he/she allows another person, not himself/herself, to acquire property or property benefits, the crime of breach of trust under the Criminal Act shall not be established.
However, Defendant A used most of the KRW 390,000,000,000 received from J as the operating expenses of the Residents' Self-Governing Council, and thus, Defendant B cannot be deemed to have acquired property in return for an unlawful solicitation with respect to the above KRW 390,000,000,000,000 from Defendant B and Defendant A.
On the contrary, the judgment of the court below which found the Defendant guilty of all the charges by deeming that the Defendant acquired the entire amount of KRW 400,000,000.