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(영문) 대법원 2017.04.28 2016도11302
배임수재
Text

All appeals are dismissed.

Reasons

The grounds of appeal are examined.

1. On the grounds of appeal by the prosecutor, the lower court, on the grounds indicated in its reasoning, acquitted Defendant B on the ground that there was no proof of crime regarding the receipt of property in breach of trust on March 21, 2013 among the facts charged in the instant case against Defendant B, July 10, 2013, and December 12, 2013.

Even if examining the record, the lower court did not err by misapprehending the logical and empirical rules, contrary to what is alleged in the grounds of appeal.

On the other hand, the prosecutor appealed against the guilty portion of the judgment of the court below, but there is no indication of the grounds for appeal in the petition of appeal and there is no indication of the grounds for appeal in the statement of reasons for appeal.

2. As to the Defendants’ grounds of appeal

A. As to the assertion regarding Defendant A’s acceptance of money and valuables, the lower court, on the grounds as indicated in its reasoning, received each of Defendant A’s official diagnosis and cash KRW 1 million from M on March 20, 2014, and KRW 500,000,000 from September 4, 2014, respectively.

The decision was determined.

Even in light of the relevant legal principles and records, the lower court did not exhaust all necessary deliberations as alleged in the grounds of appeal, and did not err by misapprehending the rules of logic and experience.

B. As to the Defendants’ assertion regarding illegal solicitation, “illegal solicitation” refers to the fact that a solicitation goes against social norms and the principle of good faith with respect to the crime of receiving property in breach of trust under Article 357(1) of the Criminal Act. In determining so, the following should be comprehensively considered: (a) the content of the solicitation; (b) the amount and form of the property received in relation to the solicitation; and (c) the integrity of the administrator of affairs, which is the legal interest protected; and (d) the solicitation is not necessarily explicitly required to be made; and (e) the solicitation is not implicitly made (see, e.g., Supreme Court Decision 2012Do11258, May 16, 2014). The lower court, based on the reasons indicated in its reasoning, exceeds the private doctrine of K and M.

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