In the event that the total price of a unit agricultural cooperative receives money and valuables in relation to the recommendation of candidates for the president of the cooperative, the crime of giving and receiving property is committed (negative)

Article 357(1) and (2) of the Criminal Act provides that "a person who administers another's business" means a case where a person administers another's business for the benefit of the other person. Thus, if such business is not a person's business but a person who administers another's business, it cannot be deemed that the person who administers another's business. Under Article 44 of the former Agricultural Cooperatives Act (amended by Act No. 4080 of Dec. 31, 198), even if a unit agricultural cooperative was elected by the election of members of each district, it cannot be deemed that a unit agricultural cooperative independently performs its duties, such as participating in the election of executives and exercising voting rights, without being instructed or interfered with by the elected district members, and thus, it cannot be deemed that the general meeting performs its duties independently, such as exercising voting rights or voting rights in the general meeting as a member of the general meeting, which is a union's decision-making body in lieu of a general meeting, and it cannot be deemed that the exercise of voting rights in the general meeting is a candidate's business or election.

Articles 357(1) and 357(2) of the Criminal Act; Article 44 of the former Agricultural Cooperatives Act (amended by Act No. 4080, Dec. 31, 1988)

Supreme Court Decision 86Do2490 Delivered on April 28, 1987

Defendant 1 and 10 others

Prosecutor

Daegu District Court Decision 88No1359 delivered on December 2, 1988

The appeal is dismissed.

The grounds of appeal are examined.

Article 357(1) and (2) of the Criminal Act is established when a person who administers another's business acquires or provides property or financial benefits in exchange for an unlawful solicitation in connection with his/her duties. The term "person who administers another's business" refers to a case where the entrusted affairs are managed for the benefit of the other person. Thus, if such affairs are not for another person's business but for his/her own business, they cannot be deemed as a person who administers another's business (see Supreme Court Decision 86Do2490, Apr. 28, 1987).

According to the former Agricultural Cooperatives Act (amended by Act No. 4080 of Dec. 31, 1988), a general meeting consisting of all union members who decide to amend the articles of association, establish a business plan and a branch budget, elect and dismiss executives, etc. (Article 37 and Article 38 of the Act). A general meeting consisting of more than 100 union members shall organize a general meeting on behalf of the general meeting as prescribed by the articles of association. The general meeting consists of not more than 100 union members, and the total number of union members shall be elected from among union members according to their will (Article 44 of the Act). However, the general meeting shall be governed by the provisions concerning the general meeting (Article 44(5) of the Act), and the general meeting shall not be a business execution institution for union members, such as having voting rights and right to vote in the general meeting, such as union members.

Therefore, even if the general meeting was elected by the election of the union members of each district, the general meeting shall independently participate in the election of the union members and exercise their voting rights in the general meeting without being subject to the instruction or interference of the union members in the election district, and thus, it shall not be deemed to handle the affairs of the union members in the election district. Moreover, it shall not be deemed that the exercise of voting rights or voting rights in the general meeting is the affairs of all union members or unions, since it is not only the members of the general meeting, which is the decision-making body of the union

Therefore, the court below's decision to the same purport is just and there is no ground for appeal to the effect that it is not established a crime of giving or receiving property in breach of trust, aside from being given or receiving other disadvantages with respect to the recommendation of candidates for president in the general meeting of cooperatives.

For this reason, the appeal shall be dismissed without examining the grounds of appeal that the administrative affairs in the crime of taking property in breach of trust are not necessarily necessary, and there is no property interest. It is so decided as per Disposition by the assent of all participating Justices.

Justices Park Yong-dong (Presiding Justice)