[1] The meaning of "a person who administers another's business" as the subject of the crime of taking property in breach of trust, and the ground for a fiduciary relationship

[2] The meaning of "duty" in the crime of taking property in breach of trust

[3] Where the president of a reconstruction association receives money from a removal company in relation to the order for the removal of the reconstruction site, the case acknowledged as the principal of the crime of taking property in breach of trust

[1] Article 357 (1) of the Criminal Act / [2] Article 357 (1) of the Criminal Act / [3] Article 357 (1) of the Criminal Act

[1] Supreme Court Decision 99Do1095 Decided June 22, 199 (Gong1999Ha, 1546) Supreme Court Decision 2002Do6834 Decided February 26, 2003 (Gong2003Sang, 950) Supreme Court Decision 2004Do491 Decided May 12, 2006 / [2] Supreme Court Decision 80Do2130 Decided February 9, 1982 (Gong1982Sang, 317) Supreme Court Decision 2003Do2450 Decided February 13, 2004

Defendant

Defendant

Attorney Shin Shin-chul

Seoul High Court Decision 2006No2910, 2006No1522 decided April 6, 2007

The appeal is dismissed. 75 days out of detention days after the appeal shall be included in the original sentence.

The grounds of appeal are examined.

1. Regarding ground of appeal No. 1

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's business in exchange for an unlawful solicitation in connection with his/her duties acquires property or pecuniary benefits. The "person who administers another's business" as the principal agent of taking property in breach of trust refers to a person who is acknowledged to have a fiduciary relationship to handle the business in light of the principle of trust and good faith in the internal relationship with the other person, and it does not necessarily require that a person has a right to the business in an external relationship with the third person, and it does not require that the business be entrusted comprehensively, and the ground for taking property in breach of trust, that is, the ground for taking property in breach of trust, can also arise through the provisions of Acts and subordinate statutes, legal act, custom, or business management (see Supreme Court Decisions 9Do1095, Jun. 22, 199; 2002Do6834, Feb. 26, 2003; 2004Do491, May 12, 2006).

In addition, in the crime of taking property in breach of trust under Article 357 (1) of the Criminal Act, the term "duty" refers to a business entrusted by a person who administers another's business, but includes not only the original business due to such entrustment but also the business within the scope closely related to such entrustment (see Supreme Court Decisions 80Do2130, Feb. 9, 1982; 2003Do2450, Feb. 13, 2004, etc.).

Examining the reasoning of the lower judgment and the first instance court in light of the aforementioned legal principles and records, the lower court, based on the evidence duly admitted by the first instance court, (1) agreed that the representative director of Nonindicted Co. 1, the removal company, from early 202 to early 2003, would be able to give orders for the removal of the reconstruction site of this case; (2) if the removal company entered into a contract with the construction company and entered into the construction site with the construction site of this case before the commencement of removal work, the removal company would normally take charge of the removal work; and (3) the removal company would normally select the removal company from among the registered subcontractors, and (4) it was registered with the construction site of this case as a specialized construction company of this case from 00 to 00 to 200 to 30,000 to 4; (4) it was registered with the construction site of this case as a specialized construction company of this case, and (3) it was registered with the construction site of this case without any order for removal from the construction site.

2. Regarding ground of appeal No. 2

Examining the evidence adopted by the court of first instance that the court below maintained in light of the records, it is just to find the court below guilty of the acceptance of bribe against the defendant, and there is no violation of the rules of evidence as otherwise alleged in the ground of appeal.

3. Conclusion

Therefore, the appeal shall be dismissed and part of the detention days after the appeal shall be included in the original sentence. It is so decided as per Disposition by the assent of all participating Justices.

Justices Park Si-hwan (Presiding Justice)