The summary of the facts charged of this case is that "the defendant is an instructor of a private teaching institute, who is an instructor of a private teaching institute, and after the foreign exchange crisis, implements the system of special guarantee for livelihood establishment which provides credit guarantee to small and medium enterprises which start-up business with the Korea Credit Guarantee Fund for the stabilization of the livelihood of ordinary people and the promotion of the middle floor, with the intention of enabling the defendant to easily provide loan guarantee to ordinary people for the convenience of financing, and to use the loan for the purpose of personal debt repayment, etc. by pretending that the defendant would consume the loan for the establishment of a new type of business for the purpose of the establishment of the Gangwon-do KIB. The defendant would like to use the loan for the purpose of using the loan for the purpose of the credit guarantee fund for the establishment of the KIB. 50,000's loan 20,000's loan 5,000,0000's loan 2,000,000,000's loan 2,000,000.

2. Summary of the judgment below

On the grounds delineated below, the lower court acquitted the Defendant.

(a) Fact-finding;

According to the evidence of this case, around August 200, Non-Indicted 1 leased 303 of the Namyang-gu, Gyeonggi-do, Gyeonggi-do, and actually established, registered, and operated the Gangwon-do Institute of Education. However, the lessee and the head of the private teaching institute was the defendant, and the defendant was actually the principal of the private teaching institute and the principal of the school. The defendant was the principal of the private teaching institute with the consent of Non-Indicted 1, who was to use the start-up loan for some personal purposes, obtained a credit guarantee letter from the victim with the consent of Non-Indicted 1, and used the start-up fund amounting to KRW 30 million as security and paid to Non-Indicted 1 to use it as the operating cost of the private teaching institute, and the remainder of Non-Indicted 20 million won can be recognized as being consumed by the defendant for personal purposes.

B. Whether the act of deception on the qualification for guarantee and the purpose of financing was committed

First, as to whether there was deception on the qualification for guarantee, the name of the tenant of the building of the above private teaching institute, and the name of the registration of the establishment and operation of the above private teaching institute is the defendant, under the agreement with the actual founder and operator of the above private teaching institute, the application for special guarantee for livelihood-based business start-up in the name of the defendant is bound to be the name of the external representative. Therefore, in this case, it is difficult to deem that the victim was deceiving on the qualification for guarantee in this case (it is difficult to recognize the causal relationship between such deception and guarantee, even if it is the case of deceiving the victim about the qualification for guarantee).

Next, as to whether there was deception as to the purpose of financing, it is recognized that the defendant obtained a guarantee of the name of the "special guarantee for livelihood-based business start-up" and applied for a guarantee to use part of the loan, which is based on it, for personal purposes, and then used for personal purposes. Therefore, it is reasonable to deem that the victim deceivings the Credit Guarantee Fund as the victim in this point.

C. Whether there exists a causal relationship between the aforementioned deception and the guarantee

However, according to the statement at the court of first instance in order to process the instant guarantee entrusted by the Korea Credit Guarantee Fund and to take charge of the relevant loan, it is not impossible to provide a special guarantee for business start-up only on the ground that the name of the private teaching institute head and the actual head of the private teaching institute are different, but merely it is not possible to provide a guarantee when the head of the private teaching institute is a bad credit holder, and the special guarantee for business start-up is guaranteed after confirming whether a person has already started-up and applied for a guarantee after other funds. Therefore, it can be recognized that the relevant agency does not check whether a business start-up loan is actually used for expenses related to business start-up (in this respect, the special guarantee for business start-up of a living has been a system that provides financial conveniences without being able to use if a certain qualification requirement is met, unlike its name).

Therefore, it is determined whether the person subject to guarantee is a bad credit holder, or whether the establishment of a business in the name of the person subject to guarantee was actually conducted. Since the guarantee in this case was actually established by a private teaching institute under the name of the defendant, not a bad credit holder, the defendant applied for a guarantee to use some of the start-up funds for the purpose of driving funds in the name of the defendant, even though he did not disclose it to the head of the private teaching institute under the name of the defendant, and it cannot be said that there was a causal relationship between the act of making an application for a guarantee to use it for the purpose of driving funds

3. Judgment of the Supreme Court

However, we cannot accept the judgment of the court below for the following reasons.

A. According to the records, the special guarantee system for livelihood-based start-up business is a system that provides credit guarantees to small and medium enterprises newly start-up by the Korea Credit Guarantee Fund to stabilize the lives of ordinary people after the foreign exchange crisis, and its target enterprises should also be the small and medium start-up enterprises that operate profit-making business within one year from the date of application for guarantee to the date of application for guarantee, and its financial resources are considered as so-called public funds. The application document is required to submit documents such as business registration certificate, business lease contract, business plan inspection table, etc.

B. On the other hand, the witness of the first instance court, who is employed by the court below, has been processed by the bank as entrusted by the Korea Credit Guarantee Fund. On the other hand, if an application for special guarantee of establishment and loan was made, the bank will examine the applicant's credit status, etc., and determine whether to grant a loan after submitting an application for the loan and required documents. On the other hand, in order to avoid the risk of loan due to the applicant's first instance court's establishment, the bank's employees will check the establishment site, and even if the defendant's testimony was made based on the qualification of the operator of the Gangnam-do Private Teaching Institute, if the defendant was not the operator of the above private teaching institute, the bank will not know the loan of this case for the first instance court's first instance court's purpose or for the first instance court's testimony to the effect that the applicant was not the operator of the above private teaching institute's loan and the first instance court's testimony to the effect that the applicant was not the operator of the above private teaching institute's loan and the first instance court's testimony will not be used.

C. Rather, in the overall statement at the investigation agency and the court of first instance, the purpose of implementing the livelihood-based special guarantee system as seen earlier, financial resources for loans for start-up funds, guarantee and application documents for loans, and the purpose of the loans is clearly proved to be related to start-up. When the loans are extended, the purpose of the loans for start-up funds in this case is to support the new start-up funds of ordinary people, and the Korea Credit Guarantee Fund has guaranteed the loans for the purpose of providing the financial convenience of ordinary people operating a new start-up business. Accordingly, even though the defendant, who is only the head of a private teaching institute, used some of the loans for the purpose against the purpose of the living-based special guarantee system and the purpose of the loans for the living-based special guarantee system, it constitutes fraud, and it cannot be said that there is no proximate causal relation between the above act of deception and the guarantee in this case.

D. Nevertheless, the court below determined that there was no causation between the defendant's application for the guarantee of this case and the guarantee of this case, which erroneously grasped the purpose or nature of the living-based special guarantee system of this case, the purpose of the loan of start-up funds, and the meaning of testimony for the testimony of witnesses. The court below erred by failing to exhaust all necessary deliberations or by misunderstanding the facts in violation of the rules of evidence, and such illegality affected the conclusion of the judgment.

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

Justices Shin Hyun-chul (Presiding Justice)