The prosecutor's appeal is dismissed.

1. The summary of the grounds for appeal is that Defendant A, as the chairperson of the AL Trade Union (hereinafter referred to as the “AL Trade Union”), was able to exercise influence over the personal status of each member, as well as all union members, based on his/her authority over personnel management and disciplinary action against union members under the collective agreement with the

As such, as long as Defendant A can exercise influence over the relevant persons in charge of entering into a contract, Defendant A has an obligation not to cause damage to the U.S. Armed Forces’s business by abusing its authority to receive money and valuables and by failing to perform its role as the president in the manner of unfairly allowing members, etc. to take advantage of convenience in concluding a contract with a specific business entity, and thus, Defendant A constitutes “a person who administers another’s business” under the crime of taking property in breach of trust.

Nevertheless, the judgment of the court below that found Defendant A not guilty of the facts charged in this case without recognizing Defendant A as a person in charge of another person’s business was erroneous in the misapprehension of legal principles.

2. Determination on the grounds for appeal

A. 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. The person who administers another's business as the principal of the crime of taking property in breach of trust refers to a person who is acknowledged to have a fiduciary relationship to handle the business in accordance with the principle of trust and good faith in an internal relationship with another person, and does not necessarily require that he/she has a right to the business in an external relationship with a third person, and does not require that the business is a comprehensive entrusted business. In addition, the grounds for taking property in breach of trust, i.e., the grounds

Supreme Court Decision 2009Do5618 Decided August 25, 2011