[2] Meaning of "matters requiring a resolution by the board of directors" under Article 66 (2) 4 of the Community Credit Cooperatives Act, and whether deposit of shares of surplus funds of community credit cooperatives in accordance with guidelines for the management of surplus funds of community credit cooperatives constitutes "matters requiring a resolution by the board of directors" (negative)

[2] Matters requiring a resolution by the board of directors under Article 66 (2) 4 of the Community Credit Cooperatives Act refer to the cases where the law requires a resolution by the board of directors among the matters under each subparagraph of Article 16 (3) of the same Act, and therefore, it does not include any matters referred to by the board of directors voluntarily, such as Article 16 (3) 6 of the same Act. In addition, Article 24 of the Enforcement Decree of the Community Credit Cooperatives Act provides that surplus funds of a credit cooperative may be operated by the methods of depositing in the federation, depositing in financial institutions, monetary trust in trust to trust companies, national bonds, local government bonds, and securities purchase as determined by the head of the Federation. The National Federation of Community Credit Cooperatives provides that the products whose ratio of stock acquisition is less than 30% within the limit of 20% of total amount of surplus funds can be purchased or deposited after obtaining a resolution by the board of directors (Article 6 (2) 4 of the Guidelines for Operation of Surplus Funds). However, the above guidelines merely constitutes the internal regulations for the enforcement of the National Community.

1. The judgment of the court below

The summary of the facts charged against the Defendants is as follows: “The defendants conspired to deposit the surplus funds of the non-indicted community credit cooperatives in the shares-based beneficiary certificates at the location of the Jeju-dong Investment Trust located in Busan-gu on July 6, 1999, after obtaining a resolution of the board of directors, it should be executed after the resolution of the board of directors. However, the defendant deposited 500 million won of the surplus funds in the shares-based trust without obtaining a resolution of the board of directors, and at least nine times during the period from the time to the 16th day of the same month, without obtaining a resolution of the board of directors.” Thus, the court below found the first instance guilty of all of the surplus funds of the above credit cooperatives in accordance with the evidence of the judgment, and maintained that the court applied each of the provisions of Article 66(2)4 of the Community Credit Cooperatives Act and Article 30 of the Criminal Act.

2. As to the mistake of facts or misapprehension of legal principles as to money trust

Article 24 of the Enforcement Decree of the Community Credit Cooperatives Act provides that surplus funds of a credit cooperative may be managed by means of deposit in the Federation, deposit in financial institutions, trust in trust with a trust company, purchase of government bonds, local government bonds and securities determined by the head of the Federation. The term "trust" refers to the legal relation that a truster transfers a specific property right to a trustee, takes other measures, and has a trustee manage and dispose of such property right for a specific person's interest or for a specific purpose (Article 1(2) of the Trust Act). Since purchase of beneficiary certificates issued by a securities investment trust company under the Securities Investment Trust Business Act does not constitute a money trust with a trust company under the above Enforcement Decree.

Examining the relevant evidence in light of the records, it is proper that the court below recognized that the defendants deposited the surplus funds of the credit cooperative in the share-based beneficiary certificates as stated in its holding without obtaining a resolution of the board of directors, and there is no misconception of facts or misapprehension of legal principles. The grounds for

3. As to the misapprehension of legal principles as to Article 66 (2) 4 of the Community Credit Cooperatives Act

Matters requiring a resolution by the board of directors prescribed in Article 66 (2) 4 of the Community Credit Cooperatives Act refer to the cases requiring a resolution by the board of directors among the matters prescribed in the subparagraphs of Article 16 (3) of the same Act. Therefore, the matters referred to by the board of directors voluntarily, such as Article 16 (3) 6 of the same Act, shall not be included in the matters referred to by the board of directors. In addition, Article 24 of the Enforcement Decree of the Community Credit Cooperatives Act provides that surplus funds of a credit cooperative may be operated by the methods of depositing in the federation, depositing in financial institutions, monetary trust in trust in trust to trust companies, national bonds, local government bonds, and securities purchase prescribed by the head of the federation, etc.

Nevertheless, the court below, on the grounds as stated in its reasoning, found the Defendants guilty of the facts constituting the crime by deeming that the deposit of the share-based beneficiary certificates of the surplus funds in question in this case requires a resolution of the board of directors, and thereby adversely affected the conclusion of the judgment by misapprehending the legal principles as to the matters requiring a resolution of the board of directors under Article 66(2)4 of the Community Credit Cooperatives Act. The

4. Therefore, the lower judgment is reversed, and the case is remanded to the lower court. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Seo-sung (Presiding Justice)