[1] Whether the crime of taking property in breach of trust is established in a case where a mere demand or promise of property gains is made (negative)

[2] The case denying the establishment of the crime of taking property in breach of trust on the ground that the defendant did not have real pecuniary advantage since the name of the defendant was not changed in the name of the golf course membership

[1] In order to punish a person who administers another's business as a crime of taking property in breach of trust under Article 357 (1) of the Criminal Code, a person who receives an illegal solicitation and receives property or pecuniary benefits as a consideration therefor, and "acquisition of pecuniary benefits" in the crime of taking property in breach of trust means only real acquisition, and it does not include cases where a request or promise is made merely.

[2] The case denying the establishment of the crime of taking property in breach of trust on the ground that the defendant did not acquire real property benefits in the event that the name of the defendant was not changed in the name of the golf course membership

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

[1] Supreme Court Decision 84Do1906 delivered on November 27, 1984 (Gong1985, 105), Supreme Court Decision 87Do1560 delivered on November 24, 1987 (Gong198, 1988), Supreme Court Decision 91Do61 delivered on August 27, 1991 (Gong191, 2463)

Defendant

Prosecutor

Attorney Final Young-young et al.

Seoul High Court Decision 98No2201 delivered on November 4, 1998

The appeal is dismissed.

The grounds of appeal are examined.

1. As to the violation of the Act on the Aggravated Punishment, etc. of Specific Crimes

In light of the records, we affirm the court below's decision that found the defendant not guilty of the violation of the Act on the Aggravated Punishment, etc. of Specific Crimes due to good offices among the defendant in this case on the grounds of its stated reasoning, and there is no violation of the rules of evidence as alleged in the grounds of appeal. The ground of appeal on this point is not acceptable.

2. As to the taking of property in breach of trust

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's business" acquires property or financial benefits in return for an illegal solicitation in connection with his duties. As such, among the charges of taking property in breach of trust of this case, the court below is justified in holding that the defendant acquired 30,000 won from non-indicted 1, and that he submitted an application for membership in a golf course from non-indicted 2 to acquire it, and that it does not constitute the element of the crime of taking property in breach of trust of this case for reasons as stated in its holding. There is no error in the misapprehension of legal principles as argued in the Grounds for Appeal.

In addition, in order to punish a person as a crime of taking property in breach of trust, there must be a criminal intent for the person who administers another's business to receive property or benefits in return for the illegal solicitation, and the "acquisition of benefits in property" as stated in the crime of taking property in breach of trust means only real acquisition, so it shall not be included in the case where a simple request or promise is made. In light of the records, as to the fact that the defendant acquired 30,000,000 won from non-indicted 1, the court below's prosecutor's statement alone cannot be concluded that the defendant received illegal solicitation and received property or benefits in return, and there is no other evidence to find that there was a criminal intent for receiving property or benefits in return, and ② the defendant submitted to the non-indicted 2 an application for taking part in the membership in the Dasan Golf Course, and even if the defendant consented to the above grant of membership in the golf course and the defendant's name was not changed in the name of the defendant, there is no violation of the rules of evidence as to the defendant's property benefits.

As a result, the argument in the grounds of appeal on this point is not acceptable.

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

Justices Cho Cho-Un (Presiding Justice)