[2] The case holding that where Article 43 (1) 2 of the Enforcement Rule of the Regulations on Supervision of Community Credit Cooperatives under Article 24 (3) of the former Enforcement Decree of the Community Credit Cooperatives Act established the limit of securities that community credit cooperatives may purchase as surplus funds, it is difficult to view that the delegated limit exceeded the delegated scope

[2] The case holding that since Article 24 subparagraph 3 of the former Enforcement Decree of the Community Credit Cooperatives Act (amended by Presidential Decree No. 19958 of March 27, 2007), Article 24 subparagraph 3 of the "purchase of securities determined by the president of the federation" is stipulated as the method of operating surplus funds of a credit cooperative, it is difficult to view that Article 43 (1) 2 of the Enforcement Rule of the Community Credit Cooperatives Regulation set the limit of the securities that a community credit cooperative may purchase as surplus funds, and that the head of the federation can restrict the method of operating surplus funds by restricting the type of securities, and that the method of operating surplus funds can be restricted by establishing the limit of the purchase of securities, it is difficult to view that Article 24 subparagraph 3 of the above Enforcement Decree set the limit

1. As to the violation of the Community Credit Cooperatives Act

A. Whether it violates the principle of no punishment without law

Since it is practically impossible to provide for all laws and regulations related to criminal punishment without exception due to complex and diversification of social phenomenon, the limit of professional and technical ability of the National Assembly, and the limit of time adaptation ability, it is not in fact impossible to provide for all laws and regulations related to criminal punishment by law within a formal meaning without exception, and since it is not appropriate to do so, in cases where detailed discipline of legislators is impossible or where it is strongly required to flexibly cope with changes in the situation, delegation legislation is permitted under the premise that the delegated law is clearly determined to what extent the act subject to punishment can be predicted in terms of the constituent elements, and in terms of punishment, the kind, limit and width of punishment is clearly prescribed (see, e.g., Supreme Court Decisions 200Do1007, Oct. 27, 200; 2005Do7474, Jan. 13, 2006).

Article 66 (2) 6 of the former Community Credit Cooperatives Act (wholly amended by Act No. 8485, May 25, 2007; hereinafter referred to as the "former Act") shall, when an officer, employee, or liquidator of a credit cooperative or federation has violated an order under Article 26 (3) of the former Act, be punished by imprisonment for not more than three years or by a fine not exceeding five million won. Article 26 (3) of the former Act shall delegate matters concerning the management of surplus funds of community credit cooperatives to the Presidential Decree. Article 24 of the former Enforcement Decree of the Community Credit Cooperatives Act (wholly amended by Presidential Decree No. 19958, Mar. 27, 2007; hereinafter referred to as the "former Enforcement Decree") provides that the scope of purchase of government bonds and securities prescribed by the president of the Federation of Community Credit Cooperatives (hereinafter referred to as the "Federation") shall be prescribed by the method of operating surplus funds of community credit cooperatives under subparagraph 1 and subparagraph 2 as the "purchase of government bonds and securities trust funds" prescribed by the president of the Federation.

In light of the fact that the financial market is complicated and complicatedly changing, the regulations on the operation of surplus funds of community credit cooperatives should cope with it, but the National Assembly is difficult for it to predict all changes in the financial market and it is not easy for it to revise the law every time to cope with such changes. Therefore, it is inevitable to delegate the provisions on the operation method of surplus funds to the Enforcement Decree without specifying them in advance by law, and the concept of "operation of surplus funds" under Article 26 (3) of the former Act has a relatively concrete meaning in advance. Therefore, the predictability of the act subject to punishment is sufficiently expected, and Article 66 of the former Act, which is the punishment provision in the case of violation of Article 26 (3) of the former Act, clearly prescribes the type, upper limit and width of punishment.

In addition, even when taking the risk in light of the purpose of the community credit cooperatives system, it is inevitable to secure and maintain the soundness of assets rather than promoting the active increase of assets. For this purpose, Article 24 of the former Enforcement Decree provides for deposit in the Federation (No. 1), deposit in financial institutions, money trust in trust to trust companies (No. 2), and purchase of securities (no. 3) as determined by the head of the Federation. Thus, the term "purchase of securities determined by the head of the Federation" as mentioned above can be sufficiently predicted that the term "purchase of securities" is a stable investment method corresponding to purchase of state bonds and local government bonds, and if the purchase of securities is defined as one of the stable investment methods, it is extremely difficult to individually specify the specific types of securities under Article 24 of the former Enforcement Decree, and its detailed designation is requested to mobilization technical and professional knowledge in accordance with changes in economic situation. Thus, it can be said that the Enforcement Decree further re-issuance of securities is possible.

In addition, considering that Article 26 (3) of the former Act and Article 24 subparagraph 3 of the former Enforcement Decree of the former Enforcement Decree are "executive officers, employees, or liquidators of a credit cooperative or federation, who directly take charge of, or closely related to, the affairs of the community credit cooperative with considerable knowledge of the affairs thereof, they shall not be deemed to violate the principle of no punishment without the law or to deviate from the limit of the delegated legislation, even if Article 26 (3) of the former Enforcement Decree provides that the operation of surplus funds of the community credit cooperative under Article 26 (3) of the former Act was delegated to the Enforcement Decree without specifying specific methods, or that Article 24 subparagraph 3 of the former Enforcement Decree provides that "the purchase of government bonds and local government bonds as well as the purchase of securities prescribed by

(b) Whether the enforcement rules deviate from the delegation scope of the former Enforcement Decree

In a case where there exists an individual delegation that sets a specific scope in the Act or the Enforcement Decree, matters delegated by subordinate regulations may be determined. Here, a uniform standard may not be determined because the specific scope of delegation varies depending on the type and character of the object to be regulated, but at least, the basic matters of the contents and scope to be specified in subordinate regulations are specified in the relevant Act or the Enforcement Decree. However, the existence of predictability should not be determined with only the relevant delegation provision, but be determined with the overall structure, purpose, and purpose of the relevant delegation provision, the overall structure, and purpose of the Enforcement Decree of the relevant delegation provision, the relevant delegation provision, the relevant delegation provision, and the relevant laws and regulations must be systematically and systematically determined, and further, specific and individual review should be conducted according to the nature of the object to be regulated (see Supreme Court Decisions 201Du5651, Aug. 23, 2002; 2003Du7606, Jul. 22, 2004, etc.).

According to the reasoning of the judgment below, since Article 24 subparagraph 3 of the former Enforcement Decree of the Act provides for "purchase of securities determined by the president of the federation" as methods of operating surplus funds, the head of the federation can restrict the methods of operating surplus funds by restricting the types of securities and can restrict the methods of operating surplus funds by establishing the purchase limit. In light of the purpose of the community credit cooperatives system that promotes members' economic, social, and cultural status and promotes community development based on independent cooperative organization based on mutual aid and mutual aid spirit, it is inevitable to secure and maintain asset soundness rather than promoting the increase of treasury assets even if it is actively under risk. In order to meet such demand, it is reasonable to limit the types of securities purchased as well as restrict the purchase limit according to the equity capital or the size of surplus funds of the community credit cooperatives, the court below erred by misapprehending the legal principles and the purport of Article 24 subparagraph 3 of the former Enforcement Decree of the Act and the purport of Article 43 (1) 2 of the former Enforcement Decree of the Enforcement Decree of the Act, and it is difficult to view that the above provision and the scope of surplus funds can be established.

In addition, in light of the above circumstances, Article 43 (1) 2 of the Enforcement Rule stipulating the limit of purchase of securities cannot be deemed to infringe on the essential contents of property rights, or to violate the market economy principles and free democratic fundamental order guaranteed by the Constitution. Thus, the judgment below to the same effect is justifiable.

(c) relating to the two punishment provisions;

Article 26 (3) of the former Act prohibits executive officers and employees of community credit cooperatives from violating the restrictions prescribed by the Presidential Decree concerning the operation of surplus funds of a credit cooperative, and Article 6 (2) 6 of the former Act provides a punishment provision that is punished against a credit cooperative in cases where a representative, agent, employee or other worker of a credit cooperative commits an offense in connection with the duties of the credit cooperative in accordance with Article 67 of the former Act.

According to the reasoning of the judgment below and the records, Defendant 1 is the chief director of the Defendant’s treasury, Defendant 2 is in charge of the former duties, and Article 43(1)2 of the Enforcement Rule upon delegation of Article 26(3) of the former Act and Article 24 subparag. 3 of the former Enforcement Decree provides that the total purchase of beneficiary certificates for which stocks, etc. are included in the operation of surplus funds of the Saemaul Treasury shall not exceed the larger amount between 150/100 of the equity capital of the end of the immediately preceding business year and 30/10 of the total amount of surplus funds. However, the court below’s determination that Defendant 1 purchased beneficiary certificates in excess of the limit of purchase of beneficiary certificates under the above detailed enforcement rule as the surplus funds of the Defendant’s treasury under the pretext of increasing the profitability of operating funds of the Defendant’s treasury. The board of directors of the Defendant’s treasury, after hearing Defendant 1’s explanation and knowing that the above purchase of beneficiary certificates was unlawful, shall not be justified in the application of the aforementioned joint penal provisions.

2. As to occupational breach of trust

In full view of the circumstances acknowledged by the evidence duly admitted, the court below held that Defendant 1’s lending of KRW 100 million to Defendant 2 without interest in violation of the articles of incorporation, etc. of the Defendant’s credit cooperative constitutes an act of occupational breach of trust against the Defendant’s credit cooperative; Defendant 2 actively participated in the above loan and thus, Defendant 1 committed the instant act of occupational breach of trust in collusion with Defendant 1. In light of the reasoning of the judgment below and the records, the court below’s above judgment is acceptable, and there is no error of law by misapprehending the legal principles on the establishment of occupational breach of trust, etc. as alleged in the ground of appeal. In addition, the part of the ground of appeal disputing the factual relations which the court below is the premise of the judgment

On the other hand, in light of the above process of loans, the size and conditions of loans, etc., the argument in the grounds of appeal that the above loans constitute justifiable acts that do not go against the social norms cannot be accepted.

3. Conclusion

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

Justices Ahn Dai-hee (Presiding Justice)