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The judgment below
Of them, the part against Defendant A shall be reversed.
Defendant
The punishment against A shall be four months.
Reasons
1. Summary of grounds for appeal;
A. Defendant A (1) misunderstanding of facts and misunderstanding of legal principles are members of the local council who are not in the position of dealing with another person’s affairs, such as the State and local governments, and thus cannot be the subject of occupational breach of trust.
The defendant does not have any knowledge of the decision-making authority with respect to the allocation of the budget to H City, and there is no fact that HH public officials forced to commit a breach of trust, so the defendant has no intention to commit a crime of occupational breach of trust.
(2) The lower court’s sentence of unreasonable sentencing (two years of suspended execution for four months of imprisonment, two years of probation, and three hundred hours of community service) is too unreasonable.
B. Each sentence of the lower court against Defendant B and C (the suspended sentence of a fine of KRW 2 million; the suspended sentence of a fine of KRW 2 million for one year, the suspended sentence of a fine of KRW 2 years, a fine of KRW 1 million for one year, probation, community service, etc.) is too unfasible and unreasonable.
2. Determination. A.
Defendant
A. (1) In order to recognize a beneficiary who benefits from the implementation of the crime of occupational breach of trust in relation to the relevant law or a third party closely related thereto as a joint principal offender with the perpetrator of the crime of occupational breach of trust, it is insufficient to recognize that the perpetrator’s act constitutes an act of occupational breach of trust in relation to the principal himself/herself, by passively taking advantage of the perpetrator’s act of breach of trust, and it is necessary to actively participate in the act of breach of trust by inducing the perpetrator of the act of breach of trust or participating in the whole process of the act
(See Supreme Court Decision 9Do1911 delivered on July 23, 1999). The crime of occupational breach of trust is established when a person in a position to handle another’s business commits an act in violation of one’s duty, thereby acquiring pecuniary advantage or having a third party obtain it, thereby causing loss to the principal. As such, the crime of occupational breach of trust is established in that it is a position to handle another’s business.