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The judgment below
The part against Defendant C is reversed, and that part of the case is remanded to the Seoul High Court.
Reasons
The grounds of appeal are examined.
1. As to Defendant A’s ground of appeal
A. As to the assertion on the establishment of the crime of taking property in breach of trust and the intent of taking property in breach of trust, the crime of taking property in breach of trust is established when a person who administers another’s business obtains property or pecuniary benefits in return for an unlawful solicitation in connection with his/her duties. In such cases, the intent of taking property in breach of trust is determined by means of estimating the intention of taking into account, comprehensively the relevant factors objectively revealed, such as the motive and purpose of acquiring property or financial benefits, the background and purpose thereof, the status and purpose of acquiring the property or financial benefits, the relationship between the recipient and the delivery, the value of the received property in question, and the method of safekeeping and disposal after receipt, etc.
① Defendant A is the head of the headquarters of the Civil and Environmental Headquarters for N Co., Ltd. (hereinafter “N”), and Defendant B and C need to pay expenses in cash, in addition to the company’s official funds, while conducting business for new contracts of the large-scale internship Corporation and managing existing construction sites.
Accordingly, the defendant B and C received prior instructions from the defendant A or made a prior report, and the defendant B and C received cash payment from the construction companies that received a subcontract for the existing construction works executed by N or wanting to receive a future subcontract in the amount of KRW 100 million as business expenses.
② The Defendants were in a position that has substantial authority over, or may have influence on, the conclusion of a subcontract agreement with N and the registration of a collaborative company, or the provision of convenience in connection with the existing subcontract works, and the Defendants were in a position that has paid business expenses to the Defendants, with the intent of soliciting such assistance.