사회복지법인 운영권 양도와 배임수재죄의 ‘부정한 청탁’ (대상판결: 대법원 2013. 12. 26. 선고 2010도16681 판결)

The subject case ruled as to whether, in case where a social welfare corporation‘s founder or operator enters into the contract where s/he transferred the management right and was supposed to receive money corresponding to the management right transfer (the management right transfer contract), a proposal or request of such corporate management right's transfer for value constitutes an “unjust request” in the breach of trust and bribery crime under the Criminal Act. In light of the followings as a whole: ➊ basic asset disposal under the Social Welfare Services Act expects the basic asset's real right change, but in the case of the management right transfer contract, no change occurred to the basic asset's ownership right. and thus it is difficult to view the two as identical; ➋ in the general systems of its provisions. the Social Welfare Services Act and other statutes, the pertinent administrative agency's approval and criminal punishment are explicitly stipulated since the foundation of a corporate existence is directly threatened in case of a “material change” where a social welfare corporation's basic asset is disposed of; on the other hand, regarding the change of a corporate executive accompanied by a management right transfer contract, i,e,. the case of a “personnel change”, there is no provision to restrict or prohibit it except imposing the duty of an administrative report; ➌ the Constitutional Court of the Republic of Korea declares “freedom to operate a social welfare corporation” or “comprehensive management right of the corporation” as the fundamental rights derived from the Constitution of the Republic of Korea, and further, criminal punishment cannot be imposed just based on the finding of an element of “unjust request” under the Criminal Act as the general law despite absence of an explicit provision under the pertinent special law such as the Social Welfare Services Act, etc. regarding a management right transfer contract or a corporation's “personnel change”, the subject case declared that the above proposal of management right transfer cannot be seen as “unjust request” proposal in the breach of trust and bribery crime. The subject case also can be evaluated as reconfirming the principle of nulla poena sine lege by holding that a management right transfer contract and a receipt of money from the transfer are not subject to criminal punishment just based on abstract risks that a social welfare corporation's sound operation or its basic asset might be affected negatively, where there has been no explicit determination on the part of legislators, and sending the message that merely because social reasonableness of aㅋㄴ certain “request” related to a receipt of money is suspected, it cannot be directly held as “unjust request” in the breach of trust and bribery crime.