[1] Whether the crime of taking property in breach of trust under Article 357 (1) of the Criminal Code can be the only person who administers another's business (affirmative in principle)

[2] Whether a person can be punished as a crime of taking property in breach of trust where he/she receives an illegal solicitation before acquiring the status of "a person who administers another's business" (negative)

[3] The case holding that the judgment of the court below which found the defendant guilty on the ground that there was an error in the misapprehension of legal principles, since it is not acknowledged that he had a position to handle the above construction project at the time of solicitation, as an evaluation member for the qualified review and evaluation member of the basic design for the construction project of urban waste treatment facilities ordered by the Si, he cannot be punished as a crime of taking property in breach of trust, unless it is recognized that

[1] Article 357 (1) of the Criminal Act / [2] Articles 1 (1) and 357 (1) of the Criminal Act, Article 12 (1) of the Constitution / [3] Article 357 (1) of the Criminal Act

[1] Supreme Court Decision 98Do663 Decided January 15, 199 (Gong199Sang, 315) Supreme Court Decision 2005Do643 Decided March 24, 2006 (Gong2008Sang, 627) Supreme Court Decision 2007Do760 Decided July 10, 2008 (Gong2008Ha, 1200) / [2] Supreme Court Decision 97Do2042 Decided October 24, 1997 (Gong197Ha, 3709) decided May 28, 2009

Defendant

Defendant

Law Firm Dongin, Attorneys Lee Jae-soo et al.

Chuncheon District Court Decision 2009No166 Decided October 30, 2009

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

The grounds of appeal are examined.

1. The crime of taking 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 financial benefits in exchange for an illegal solicitation in connection with his/her duties. In principle, a person who does not have such status can be the subject of the crime. (See Supreme Court Decisions 98Do663, Jan. 15, 1999; 2006Do3504, Mar. 27, 2008; 2006Do3504, etc.). Since the crime of taking property in breach of trust is established when a person who administers another person's business obtains property or financial benefits in return for an illegal solicitation, the person who administers another person's business can be the subject of the crime of taking property in principle. Thus, unless there is a separate constituent element for punishing a person who administers another person's business before acquiring another person's status, the crime of taking property in breach of trust can not be punished as a crime of taking property in case of receiving an illegal solicitation before acquiring another person's status.

2. The lower court found the Defendant guilty on the facts charged of the instant case that, as a member of the competent review and evaluation committee for the basic design of the instant construction project for urban waste treatment facilities ordered by the Defendant in Chuncheon City (hereinafter “instant construction project”), acquired property in exchange for an unlawful solicitation from co-defendants of the first instance trial, etc. in relation to his duties.

3. However, the above decision of the court below is not acceptable for the following reasons. Even according to the facts of the crime that the court below admitted by the court below, the defendant can only recognize that he was commissioned as an evaluation member of the construction project of this case only on November 15, 2007 after he received a solicitation from the co-defendant of the court of first instance to give favorable points to the design drawings submitted by the joint-defendant of the building consortium compared to the joint-defendant of the court of first instance, etc., so that the joint-defendant of the building project of this case can be awarded a successful bid. The defendant does not include any solicitation from the court of first instance as to his duties after the defendant was appointed as an evaluation member of the construction project of this case. Therefore, in light of the above legal principles, unless it is recognized that the defendant was in a position to handle the construction project of this case ordered at the time of receiving a solicitation from the co-defendant of the court of first instance, etc., the defendant cannot be punished as a crime of breach of trust. Nevertheless, the judgment below erred in the misapprehension of legal principles as to a person who administers another's business.

4. 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 Min Il-young (Presiding Justice)