(영문) 대법원 2014.2.27.선고 2013도15706 판결

1. Criminal facts have to be proved to the extent that there is no reasonable doubt (Article 307(2) of the Criminal Procedure Act). However, the determination of the cooking and probative value of evidence conducted on the premise of fact-finding belongs to the discretion of the fact-finding court unless it exceeds the bounds of the principle of free evaluation of evidence (Article 308 of the Criminal Procedure Act).

Meanwhile, 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 illegal solicitation in connection with his/her duties, and does not require that the person violates any duty or causes damage to the principal.

In this context, "illegal solicitation" is not necessarily necessary to the extent that it is the substance of occupational breach of trust, and it is sufficient that it is against social rules or the principle of trust and good faith, and its determination is made.

At the time of solicitation, comprehensive consideration should be given to the contents of solicitation, the amount of related consideration, form, and integrity of transactions, which are protected by the law, etc., and there is no need to explicit solicitation (Supreme Court Decision 2010.9.).

9. The crime of taking property in breach of trust is established as long as the gains on property or property are the consideration for such solicitation even though the acquisition of property or property gains after receiving an illegal solicitation (see, e.g., Supreme Court Decision 2011Do1174, Nov. 14, 2013).

2. According to the reasoning of the judgment below, the court below found facts as stated in its reasoning after compiling the adopted evidence, and found the following facts. ① The purpose of G’s statement was to: (i) the defendant refused to select the players at the E University on the ground that he had already extracted the players at the G University; (ii) on June 2009, the defendant was to select He at the time of the MM MM on the ground that he was to do so, he was divided into two to three occasions; and (iii) the sum of H was KRW 100 million; (iv) considering the circumstances of the judgment, G’s statement was credibility; and (v) the contents of the solicitation at this case were selected as the special students of H University, so that H University was selected as the special students of H University; (iii) the defendant, who was the supervisor of the G G of H University, received large amounts of money upon request is not only an act contrary to social rules or the principle of good faith; and (iv) the defendant did not have any influence in finding that the defendant was guilty of the total amount of money received.

3. Examining the reasoning of the lower judgment in light of the evidence duly admitted, the lower court’s aforementioned determination

The judgment is based on the above legal principles, and contrary to what is alleged in the grounds of appeal, there is no error of misapprehending the legal principles as to mistake of facts beyond the bounds of the principle of free evaluation of evidence in violation of logical and empirical rules, and failing to exhaust all necessary deliberation, such as illegality in the grounds or inconsistent reasoning, duty of explanation to guarantee the right of defense, illegal solicitation and solicitation in the crime of taking property in breach of trust, compensation for an illegal solicitation and solicitation, and the criteria for determining credibility of confession and statement, or violating the principle

The issue of resumption of closed pleadings is the matter belonging to the court's discretion, and even though the court below filed an application for resumption of pleadings after the closure of pleadings, it cannot be said that the court below rendered a sentence on the date of pronouncement notified without resumption of pleadings. In light of the records, the grounds of appeal cannot be deemed unlawful. In addition, even if examining the grounds of appeal in light of the records, there is no error of law that affected the conclusion

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