(A) If the defendant, as the representative director of the company, has cancelled the waste collection contract with the company without legitimate grounds for cancellation, and (B) has continued to maintain the above contract from the representative director of the company and has received money and valuables under the pretext of solicitation, whether the crime of breach of trust is committed.

The crime of taking property in breach of trust does not constitute an illegal solicitation that goes against social rules or the principle of good faith and good faith between a person who gives property or benefits and a person who acquires them. Therefore, if the defendant unilaterally rescinded the waste collection contract with the company Eul without legitimate grounds for revocation, the above rescission shall continue to remain effective and the above contract shall continue to exist. Therefore, even if the representative director of the company Eul provided money along with the solicitation of the continuance of the contract, and the defendant accepted it, it cannot be deemed to have made an illegal solicitation or received, and thus, the crime of taking property in breach of trust is not established.

Article 357 of the Criminal Act

Defendant

Defendant

Seoul Criminal District Court (83 High Court Decision 8569)

The judgment of the court below is reversed.

The defendant is innocent.

The gist of the defendant's defense counsel's grounds for appeal is as follows: first, although the defendant received money from the non-indicted 1 as the representative director, it does not receive property from the non-indicted 1, and the defendant received money KRW 3,00,000 in return for a request to continue to maintain the waste collection contract within the contract period. However, even if the company, which is the Gangnam Environment Development Corporation, was the defendant, was willing to collect waste by paying the collection fee to the defendant more than the above contract terms and conditions as stated in its holding, the defendant cannot be deemed to have a duty of business to conclude the contract at a lower price than the price presented by the existing contractor and the competition company when the collection fee to the company gains profits, and even if the defendant received money from the non-indicted 1 as above under these circumstances, it does not receive property from the non-indicted 1, and even though the defendant did not receive any other illegal solicitation with respect to his duties, the court below erred by misapprehending the fact that the defendant committed the crime as stated in its judgment, and it is too unfair by weighing the court below.

Therefore, according to the evidence duly admitted by the court below, the defendant was in office as the representative director of Bomundong Market Co., Ltd. on January 20, 1983 and concluded a waste collection contract with the non-indicted 1, the representative director of the steel purification company, who had already entered into the waste collection contract with the above company on January 1, 1983 through December 31 of the same year, and agreed to collect fees at KRW 1,00,000 per month from January 1 to March 3, 1983, and from April 20 of the same year to KRW 750,000 per month, and the defendant agreed to collect waste at KRW 60,000 per month from the Gangnam Environmental Development Co., Ltd., which was the competition company of the above combined purification company on April 20 of the same year, and the defendant unilaterally revoked the above contract with the above non-indicted 3,000,000 won under the pretext of the contract to collect waste at KRW 60,000 per month.

Meanwhile, the crime of taking property in breach of trust under the Criminal Act is not established unless an illegal solicitation is opened between a person who provides property or benefits and a person who acquires such property or benefits, and the "illegal solicitation" refers to a solicitation that goes against social rules or the principle of trust and good faith. Under recognized facts, even if the defendant unilaterally rescinded the above collection contract with the above trusted Cleanup Company without any legitimate grounds, the above collection contract remains effective. Thus, as the defendant is a person who is in charge of the representative director's affairs of the above Bomundong Market Corporation, and who is in charge of affairs of the above Bodong Market Corporation, does not necessarily enter into a contract with the above Bodong Market Corporation at a lower price for collecting fees, but if the above collection contract was unilaterally cancelled and concluded with another competitor, the defendant company is likely to be liable for damages due to the default of obligations under the above collection contract, and thus, the defendant's act of receiving the above collection contract's compensation for the remaining existence of the contract by the defendant can not be held as an unlawful solicitation, and thus, the defendant's act of offering it can not be held as an unlawful solicitation.

Thus, the court below found the defendant guilty of the facts charged of this case without any evidence to acknowledge that the defendant received an illegal solicitation in relation to his duties while performing another's business. Thus, the above argument is justified, since the court below found the defendant guilty of the facts charged of this case to have committed unlawful acts affecting the conclusion of the judgment

Therefore, a party member who does not need to determine the remaining grounds for appeal shall reverse the judgment of the court below in accordance with Article 364(2) and (6) of the Criminal Procedure Act and shall be again decided as follows.

The facts charged of this case are as follows. The defendant, from January 17, 1983 to 3, 198. 4 of Seongbuk-gu, Seoul, as its representative director 1, and on April 20 of the same month, again signed the waste collection contract with the non-indicted 1, the representative director of the steel purification company, which had already been entering into the above company on May 17, 198, and decided to collect the unpaid amount of KRW 1,00,000 per month from April 1 to 3, 198. 8, the defendant received 1,000 won for the above 1,50,000 won for the above 1,000 won for the above 3,00 won for the above 1,000 won for the above 3,00 won for 1,000 won for the above 1,000 won for 1,000 won for 3,000 won for the above new 3,000 won for the above 1,00.

It is so decided as per Disposition for the above reasons.

Judges Lee Jae-jin (Presiding Judge)