[1] The meaning of and criteria for determining illegal solicitation in the crime of giving or receiving the certificate of breach of trust

[2] The case affirming the crime of misappropriation in case where a university professor receives money corresponding to a certain ratio of the sales price of the teaching materials in return for a request to adopt and request the teaching materials of a specific publishing company

[1] In the crime of giving and receiving the evidence in breach of trust, an illegal solicitation refers to a solicitation that goes against the social norms and the principle of good faith, and in determining this, a comprehensive consideration should be given of the contents of the solicitation and the amount of the property delivered or provided in relation thereto, form, and integrity of the business administrator, who is protected by the law, is not necessarily required.

[2] The case affirming the crime of misappropriation in case where a university professor receives money corresponding to a certain ratio of the sales price of the teaching materials in return for a request to adopt and request the teaching materials of a specific publishing company

[1] Article 357 (1) of the former Criminal Code (amended by Act No. 5057 of Dec. 29, 1995) / [2] Article 357 (1) of the former Criminal Code (amended by Act No. 5057 of Dec. 29, 1995)

[1] Supreme Court Decision 88Do167 delivered on December 20, 198 (Gong1989, 205) Supreme Court Decision 91Do413 delivered on June 11, 1991 (Gong1991, 1961) Supreme Court Decision 95Do2930 delivered on March 8, 1996 (Gong1996Sang, 131) / [2] Supreme Court Decision 70Do1355 delivered on September 17, 197 (No. 18-3, 4), Supreme Court Decision 90Do257 delivered on January 15, 191 (Gong191, 790), Supreme Court Decision 9Do1681 delivered on June 11, 1991 (Gong19689, Nov. 16, 196)

Defendant 1 and two others

Defendants

Attorney Jil-dong et al.

Seoul District Court Decision 95No2293 delivered on July 27, 1995

All appeals are dismissed.

The grounds of appeal are examined.

1. As to the defendants' defense counsel's misapprehension of legal principles as to illegal solicitation or misconception of facts in the grounds of appeal

In the crime of giving and receiving in breach of trust, an illegal solicitation refers to a solicitation that goes against social norms and the principle of good faith, and in determining this, a comprehensive consideration of the contents of the solicitation, the amount, form, and integrity of the business administrator, which is the legal interest protected, should be given, and such a solicitation does not necessarily require an explicit statement (see, e.g., Supreme Court Decisions 8Do167, Dec. 20, 198; 91Do413, Jun. 11, 1991).

According to the facts duly established by the court below and the records, the defendants who are university professors adopted the books published by the above co-defendant as teaching materials from the court below to the purport that they will leave them to the above publishing company, or received 30-40% of the sales proceeds of the above teaching materials every semester, such as the indictment, and they did not request the above publishing company to publish the books that they posted, or they did not sign a contract with the above publishing company. Thus, if the facts are as above, the defendants 1 and 2 cannot be seen as being attached to the above co-defendant's work, and even if the above co-defendant's adoption of university teaching materials and the publishing company are in a position to select the above publishing company, the above co-defendant's adoption of the above teaching materials and the publication company's publication of the above teaching materials can not be seen as being a violation of the principles of trust and good faith and the above provision of the publication company's money and the above issuance of the teaching materials can not be seen as an unlawful solicitation. The above co-defendant's issuance of the teaching materials or the above.

In the same purport, the decision of the court below that maintained the judgment of the court of first instance that held that the defendants received money and valuables in exchange for an unlawful solicitation is just, and as above, it cannot be viewed as an honorarium for maintaining the existing contractual relationship in light of the adoption of the teaching materials and the delivery of money every semester, and it does not change because the contents of the above teaching materials are not objectively defective in using them as the teaching materials for lectures. Therefore, the judgment of the court below did not err in the misapprehension of the legal principles as to misunderstanding of facts or unlawful solicitation, such as theory

All the Supreme Court precedents, which are the subject of the doctrine, are inappropriate to be invoked in the instant case, because they differ in the matter. All the arguments are without merit.

2. As to the defendants' defense counsel's misapprehension of legal principles as to the status of a person who administers another's business among the grounds of appeal

The court below rejected the defendants' grounds for appeal on the grounds that the defendants' selection of teaching materials and the publication company's selection of teaching materials to teach students and the publication company's inherent authority is not established as university professors because the defendants are not in a position to deal with another's business, so the defendants' selection of teaching materials to teach students and the publication company's selection of publishing company is entrusted with the defendants' free discretion. However, since the defendants' selection of teaching materials to teach students is delegated with the right to teach (see Article 150 of the Education Act) of university, it cannot be viewed as the defendants' own business based on the premise that they will use them as university teaching materials, not publication of books who have written their academic achievements, and it cannot be viewed as the defendants' own business. In light of the records and related statutes, the above judgment of the court below is acceptable and it is not reasonable to acknowledge the defendants' freedom to teach teachers of education as well as the above Supreme Court Decision 20Do1355, Sept. 17, 190; 200Do168, Jan. 196, 19

3. Examining the evidence of the first instance judgment, which was maintained by the lower court against the rest of the grounds of appeal by Defendant 2 and 3, in light of the records, Defendant 3’s assertion that the aforementioned Defendants did not exercise the right to adopt a teaching material autonomously due to the special circumstances at the shopping college, or that there was no evidence to acknowledge the Defendants’ assertion or conspiracy relation, or that the assertion by Defendant 3 is inconsistent with the principle of equity, cannot be accepted.

In addition, if the defendants received money and valuables in exchange for illegal solicitation as to their duties, even if they used some of them as the operating expenses of departments and academic societies, it cannot be concluded that there was no intent to obtain money at the time of receiving them, or there was no property profit to the defendants, and thus, the establishment of the crime of taking property in breach of trust shall not be affected. The Supreme Court precedents, which are subject to the theory of lawsuit, are also different from the case of this case. All arguments are without merit.

4. Therefore, all appeals are dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Chocheon-sung (Presiding Justice)