[1] The meaning of and criteria for determining "illegal solicitation" among the elements of the crime of taking property in breach of trust

[2] In a case where the Defendants, who are doctors of a university hospital, etc., concluded a research service agreement on the drugs provided by a pharmaceutical company, etc. for the purpose of solicitation to use the drugs, or to continuously supply the drugs in the future, and received money from the pharmaceutical company, etc. for research expenses, and were prosecuted as charges of taking advantage of breach of trust, the case affirming the judgment below that the research service agreement was duly concluded and executed from a medical perspective

[3] In a case where Defendant (a doctor of a university hospital) was indicted for committing a crime of taking in breach of trust on the ground that the pharmaceutical company, etc. received entertainment, such as a prestigious gift or golf folding, in return for the illegal solicitation that the Defendant would be able to deliver drugs, etc. continuously, the case affirming the judgment below convicting the Defendant

[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 pecuniary benefits in exchange for an unlawful solicitation in connection with his/her duties. The crime of taking property in breach of trust is not established unless an unlawful solicitation is opened between a donor of property or pecuniary benefits and a purchaser of property. Here, "illegal solicitation" does not necessarily require it to the extent that it constitutes the substance of occupational breach of trust. It is sufficient to say that it is contrary to social rules or the principle of trust and good faith. In determining it, the content of the solicitation and the amount of the consideration related thereto, form, and integrity of transaction, which

[2] In a case where Defendants, a doctor of a university hospital, etc., were indicted on charges of taking in breach of trust on the ground that they concluded a research service agreement with respect to the legal fiction provided by a pharmaceutical company, etc. for the purpose of requesting the continuous delivery of the legal fiction in the future, and received money in the name of research expenses, the case affirming the judgment below holding that the research service agreement cannot be deemed to have been duly concluded and executed based on the grounds and reasons from a medical point of view, and that it cannot be deemed to have been concluded with an intent to make unjust solicitation or payment for the delivery of legal fiction by pharmaceutical companies, etc., in light of all the circumstances, such as the appropriateness and necessity of the research purpose, the existence of efforts to secure reliability of the research outcomes, the feasibility of the research implementation process and methods, the loyalty of the research outcomes, and the propriety of the research cost, etc.

[3] In a case where the Defendant, a doctor of a university hospital, was indicted on charges of taking property in breach of trust on the ground that he was provided with a clear gift, golf entertainment expenses, and other entertainment by a pharmaceutical company, etc. in return for the use of the illegal solicitation, which would enable the continuous supply of assistance or medical materials, which are medicines, or for the use of medicines, etc., the case affirming the judgment below convicting the Defendant on the ground that the Defendant does not constitute a “person who administers another’s business,” and the Defendant’s gift, entertainment expenses, and social expenses, etc. received by the Defendant on the ground that it does not fall under the scope of a simple private case in consideration of unlawful solicitation.

[1] Article 357 (1) of the Criminal Act / [2] Article 357 (1) of the Criminal Act, Article 325 of the Criminal Procedure Act / [3] Article 357 (1) of the Criminal Act

[1] Supreme Court Decision 2008Do6987 Decided December 11, 2008 (Gong2009Sang, 62), Supreme Court Decision 2010Do7380 Decided September 9, 2010, Supreme Court Decision 2010Do1784 Decided February 24, 201 (Gong201Sang, 678)

Defendant 1 and five others

Defendant 2 and Prosecutor

Law Firm LLC et al. and 11 others

Seoul High Court Decision 2010No676 decided July 16, 2010

Each appeal shall be dismissed.

The grounds of appeal are examined.

1. As to the Prosecutor’s Grounds of Appeal

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 profits from property in exchange for an illegal solicitation in connection with his/her duties, and the crime of taking property in breach of trust is not established unless there is an illegal solicitation between the donor and the purchaser of property or profits. Here, "illegal solicitation" does not necessarily require it to the extent that it is the substance of occupational breach of trust, and it is sufficient if it is contrary to social rules or the principle of trust and good faith. In determining this, the contents of the solicitation and the amount of the relevant consideration, form, and integrity of transactions, which are protected legal interests, should be comprehensively examined (see Supreme Court Decision 2008Do6987, Dec. 11, 2008, etc.).

According to the reasoning of the judgment below, the court below presumed that, in determining whether each of the instant “after-marketing research projects” (hereinafter “Pmsing research projects”) is merely nominal, and actually implemented as an unlawful solicitation for the supply of drugs, the applicant company, etc., should comprehensively consider the necessity of the research purpose, the adequacy and necessity of research, the appropriateness of the method of selecting research institutions, the credibility of the outcome of research, the existence of intention to affect the selection and use of the relevant drugs, the relevance between the research request and the sales of the relevant drugs, and the appropriateness of the research cost, etc. Furthermore, the court below determined that each of the instant research institutes, which recognized the necessity of executing the relevant research projects to take into account the necessity of the research purpose, the appropriateness of the research implementation process and methods, the loyalty of the outcome, and the appropriateness of the research cost, etc. as stated in its reasoning, should be seen to have been conducted at the time of the conclusion of the relevant research agreement with the Korean Medical Association, as it is deemed that there was no need to take into account all other medical factors and adverse effects on each drug, which were found to have been conducted.

In light of the above legal principles and records, we affirm the above judgment of the court below as just.

As alleged in the grounds of appeal, the court below did not err by misapprehending the legal principles regarding "illegal solicitation" or by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules, contrary to what is alleged in the grounds of appeal.

2. As to Defendant 2’s ground of appeal

As the subject of the crime of taking property in breach of trust, the term "person who administers another's business" means a person who is acknowledged to have a fiduciary relationship to handle the business in light of the principle of trust and good faith with another person. It does not necessarily require that a third person has the authority to conduct the business in an external relationship with another person. In addition, it does not require that the business is an entrusted business. The ground for the conduct of business, i.e., the legal act, custom, or business management, may occur through the provisions of Acts and subordinate statutes. In the crime of taking property in breach of trust, the term "in relation to the business" refers to the business entrusted by a person who administers another's business, but it includes not only the original business due to the entrustment relationship, but also the business within the scope closely related thereto. Furthermore, it includes a person who directly or indirectly performs the business concerning the disposal of the business as his own authority, but also includes a person who is in charge of the business affairs related to the disposal thereof (see Supreme Court Decision 2005Do10203, Jul. 12, 2007).

The court below affirmed the facts acknowledged by the court of first instance based on the evidence of employment, and affirmed the judgment of the court of first instance which convicted the above defendant on the ground that the above defendant's gift, golf entertainment expenses, and ordinary meal expenses received by the above defendant does not constitute "a person who administers another's business" in relation to the crime of taking property in breach of trust, and do not fall under the scope of a simple private case in return for illegal solicitation, on the ground that the above defendant's gift, golf entertainment expenses, and ordinary meal expenses received by the above defendant do not fall under the scope of a simple private case in return for illegal solicitation.

In light of the above legal principles and records, the above fact-finding and judgment of the court below are justified.

As alleged in the grounds of appeal, the court below did not err by misapprehending the legal principles regarding “a person who administers another’s business”, “unlawful solicitation” or “acquisition of property or profits from property” or by exceeding the bounds of the principle of free evaluation of evidence.

3. Conclusion

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

Justices Yang Chang-soo (Presiding Justice)