[2] Whether the provision of Article 96 (1) 1 of the former Credit Unions Act is against the principle of clarity of penal provisions and the principle of no punishment without law (negative)

[3] The criteria for determining whether the credit limit exceeds the credit limit to the same person under the Credit Unions Act (=the person to whom loans substantially accrue)

[4] Whether the so-called "alternative exchange" constitutes "loan exceeding the limit of loan amount to the same partner or the same person, which is prohibited and punished under the Credit Unions Act (negative)

[2] In light of the legislative purpose, the entire contents, structure, etc. of the punishment law, if there is a reasonable interpretation standard that sets or limits the types of acts corresponding to the elements of the punishment law as a proper understanding and judgment of ordinary people who have the ability to discern things, it does not go against the principle of clarity of the punishment law required by the principle of no crime without the law. Article 96 (1) 1 of the former Credit Union Act (amended by Act No. 5506 of Jan. 13, 1998) provides that "when using or lending funds or disposing of or using the assets of an association or a federation for the purpose of speculation in violation of this Act or any order issued under this Act", it is limited to the types of acts which meet the requirements of punishment itself, and thus, it is clear as a punishment provision. Thus, the above provision does not violate the provisions of the law of no crime

[3] Even if a loan based on each of the loan holders' names does not exceed the lending limit to the same person, if the lending limit is based on the person to whom the loan actually belongs, the lending act violates Article 32 of the former Credit Unions Act (wholly amended by Act No. 5506 of Jan. 13, 1998) or Article 42 of the amended Credit Unions Act (wholly amended by Act No. 5506 of Jan. 13, 1998 and amended by Act No. 6204 of Jan. 28, 200).

[4] Although the so-called repayment of an existing obligation by providing a new loan only formally without receiving a loan constitutes a separate loan, barring special circumstances, it is merely an extension of the repayment period of the existing obligation and thus, is subject to prohibition and punishment under the Credit Unions Act. It does not constitute "loan exceeding the lending limit to the same partner or to the same person."

1. As to the violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Misappropriation) against Defendant 1, 2, and 3

A. The court below found that Defendant 2, who was the chief director of the non-indicted cooperative (hereinafter referred to as the "cooperative"), Defendant 1, 3, and the former president of the non-indicted cooperative (hereinafter referred to as the "cooperative"), conspired each other on August 1, 1994 and on March 30, 1996, purchased each part of the building located in the Cheongdong-gu Madong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong (hereinafter referred to as the "the building of this case"), and held that each act constitutes an occupational breach of trust with intent to commit a crime of breach of trust. In light of the records and relevant laws,

B. However, the court below acknowledged that Defendant 1 had no property interest equivalent to the purchase price of the building, and that the union suffered property damage equivalent to the same amount, and determined that it violated the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Misappropriation) on the basis of the value of the purchase price. However, upon purchase on August 1, 1994, some of the purchase price of the above KRW 950 million against the first floor of the building owned by the union against Defendant 1 was set off against the claim for return of deposit money and the claim for loans equivalent to KRW 260 million against the union's 1st floor of the building of this case, and on the other hand, the union did not have any property interest equivalent to the above purchase price of the building of this case due to the union's occupational breach of trust. Since the union's acquisition of the land and the building of this case, which was owned by the union, had no property interest equivalent to KRW 1,500,000,000,000,000 for the above 10 won,00.

Nevertheless, the court below held that the amount of profit and the amount of damages of Defendant 1 caused by Defendant 1's occupational breach of trust in this part shall be the purchase price of each building of this case, and maintained the first instance court, which was sentenced to the violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Misappropriation). Thus, the court below erred in the misapprehension of legal principles as to the amount of property damages in the violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Misappropriation), which affected the conclusion of the judgment, and

2. As to the Defendants’ occupational breach of trust

In light of the records, the judgment of the court below is just in finding the Defendants guilty of the occupational breach of trust in collusion with each other that caused damage to the union due to defective loans, and there is no violation of the rules of evidence or misapprehension of the legal principles as to occupational breach of trust, as otherwise alleged in the ground of appeal

3. As to the violation of the Credit Unions Act against Defendant 3 and 4

A. In light of the legislative purpose, the entire contents, structure, etc. of the punishment law, if there is a reasonable interpretation standard that sets or limits the types of acts that meet the elements of the punishment law as a proper understanding and judgment of ordinary people who have the ability to discern things, it does not go against the principle of clarity in penal law (see Supreme Court en banc Decision 98Do3665 delivered on November 16, 200). Article 96 (1) 1 of the former Credit Cooperatives Act applied to defendants 3 and 4 (wholly amended by Act No. 5506 of January 13, 198) provides that "when using or lending funds in violation of this Act or any order issued under this Act or disposing of or using the assets of an association or federation for the purpose of speculation", the above provision limits the types of acts that meet the requirements of punishment law, and thus, it cannot be said that it has clarity as a penal provision.

B. Meanwhile, even if a loan based on a lender’s name does not exceed the lending limit to the same person by using the name of the lender in the name of another member, as long as the lending limit exceeds the lending limit to the same person when the loan is based on the person to whom it actually belongs, the act of lending goes against Article 32 of the former Credit Unions Act or Article 42 of the amended Credit Unions Act (wholly amended by Act No. 5506 of January 13, 1998 and amended by Act No. 6204 of January 28, 2000) (see Supreme Court Decision 99Do1280, Nov. 12, 1999). In the same purport, the court below is justifiable to determine whether the lending limit exceeds the lending limit based on the person to whom the loan actually accrues, and there is no error in the misapprehension of facts against the rules of evidence or misunderstanding of legal principles as to the prohibition of excess loans to the same person due to a violation

C. However, according to the records, the loan of KRW 15 million as of July 8, 1996 against Defendant 1 among the annexed crime list Nos. 1 in the judgment of the court below and the loan of KRW 23.3 million as of December 30, 1997 as of December 30, 197 is dealt with as the repayment of existing debts by providing new loans only formally without actually receiving funds. Thus, the so-called substitution, which pays the existing debts with new loans only formally without receiving funds, constitutes a separate loan formally, unless there are special circumstances, but is merely an extension of the payment period of existing debts, and thus, it does not constitute "loan exceeding the loan limit to the same partner or the same person" (see Supreme Court Decision 201Do2189, Jun. 29, 2001; 201Do2189, etc.). Thus, the court below erred in the misapprehension of legal principles as to this part of the loan, which affected the conclusion of the judgment below.

4. As to Defendant 1’s act of unfair sentencing

Since a sentence of less than 10 years has been imposed on Defendant 1, the reason that the amount of punishment is unreasonable cannot be a legitimate ground for appeal.

5. Conclusion

Therefore, among the judgment below, the part of the violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Misappropriation) to Defendant 1, each violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Misappropriation) to Defendant 2, each violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes to Defendant 3, and each violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes to Defendant 3, and December 30, 1997, violation of the Credit Union due to loans exceeding the limit of the same person to Defendant 4, July 8, 1996, and December 30, 1997, the violation of the Act on the Aggravated Punishment, etc. of Specific Economic Punishment, etc. of Specific Economic Crimes to Defendant 4 cannot be maintained any more. The above violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Misappropriation of Trust) to Defendant 2, Defendant 2, 3, and 4 of the Criminal Act are concurrent crimes under the former part of Article 37 of the Criminal Act.

Therefore, among the judgment of the court below, the part concerning each crime of Defendant 2 and the part concerning Defendant 2, 3, and 4 of the judgment of the court below is reversed, and this part of the case is remanded to the court below for a new trial and determination. Defendant 1's appeal against the crime of Defendant 1 is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Cho Cho-Un (Presiding Justice)