All appeals filed by the prosecutor against the Defendants are dismissed.

The summary of the grounds for appeal (the mistake of facts, the misapprehension of the legal principle) is that the Defendants acquired each money stated in the facts charged, in response to illegal solicitation in relation to their duties, so the Defendants constitute a crime of taking property in breach of trust.

Judgment

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 acquires property or pecuniary benefits in return for an illegal solicitation in connection with his/her duties. It is not established unless an illegal solicitation is accepted between the donor and the acquisitor of the property.

The issue of whether a person constitutes “illegal solicitation” should be determined by comprehensively taking into account the contents of the solicitation, the amount and form of benefits received, the integrity of transactions, which are protected legal interests, etc.

(see, e.g., Supreme Court Decision 2008Do6987, Dec. 11, 2008). Illegal solicitation does not necessarily require an explicit solicitation, but the content of such solicitation requires that it is related to a specific and specific act of duty, and the acquisition of property or pecuniary benefits in relation to the duty does not necessarily constitute a crime of embezzlement.

(see Supreme Court Decision 83Do2472, Dec. 27, 1983). In addition, if the solicitation is merely a mere fact that the highest place of preference is within the scope permitted by the provision, it cannot be deemed an illegal solicitation contrary to the social rules (see Supreme Court Decision 2012Do845, May 9, 2012). Moreover, if the solicitation is deemed to have been made, it cannot be deemed as an illegal solicitation.

(See Supreme Court Decision 91Do61 delivered on August 27, 1991). The facts constituting the elements of a crime prosecuted in a criminal trial include the prosecutor’s burden of proof, whether it is subjective or objective, and the recognition of facts constituting a crime leads to the judge’s conviction to the extent that there is no room for reasonable doubt.