[2] In a case where a loan in violation of the loan regulations stipulated in the articles of association and an act of occupational breach of trust was established and an amount equivalent to the overdue interest of the existing loan was newly loaned from a union only in the form of documents to set off the overdue interest of the existing loan to the customer, whether it constitutes a crime of occupational breach of trust (negative)

[2] The crime of occupational breach of trust is established when a person who administers another person's business obtains pecuniary advantage or has a third party acquire it, thereby causing damage to the principal. Thus, the crime of occupational breach of trust is established in order to establish the crime of occupational breach of trust. As the above transaction partner has received new loans to pay overdue interests on the existing loans of the transaction partner, the part which arranged the documents as if the transaction partner had received new loans is formally given to the transaction partner, but actually stated that the above transaction partner was obtained new loans only on documents for the purpose of arranging overdue interests on the existing loans of the transaction partner, but it was stated that the loan was actually received from the transaction partner, and it was not newly given by the partnership to the above transaction partner, and thus, it does not constitute a crime of occupational breach of trust. Thus, it cannot be viewed as a separate crime of occupational breach of trust.

1. As to the Defendant’s ground of appeal No. 4

In order to constitute a single crime by covering several occupational breach of trust, the legal benefits are the same as the form of crime, and such multiple occupational breach of trust can be seen as a series of acts based on a single criminal intent (see, e.g., Supreme Court Decisions 93Do1512, Oct. 12, 1993; 85Do1275, Aug. 13, 1985; 84Do1139, Aug. 14, 1984).

According to the records, the defendant was sentenced to a suspended sentence of three years on December 13, 1995 by the Daegu High Court prior to the crime of violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Occupational Breach of Trust) and was sentenced to a suspended sentence of three years on December 13, 1995. On the other hand, the crime of the above final judgment was committed by the defendant, who was in charge of the loan business of the non-indicted 1 credit union, and was requested by the non-indicted 3, the representative director of the non-indicted 2 corporation, to lend money in excess of the limit per capita loan amount under the above articles of association from the above non-indicted 3, and it was difficult for the above non-indicted 3 to obtain more than 40 billion won loans from the above non-indicted 3 in the above non-indicted 1's name or the above non-indicted 3's name and thus, it was difficult for the defendant to collect money from the above non-indicted 1 to the above non-indicted 2's trust.

Therefore, the theory that the res judicata of the above final judgment is limited to the violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Occupational Breach of Trust) on the premise that the criminal facts of the above final judgment and the criminal facts of the violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Occupational Breach of Trust) fall under one comprehensive crime, and thus the judgment of acquittal should be rendered on the violation of the Aggravated Punishment

2. As to the first ground for appeal by defense counsel

According to the reasoning of the judgment below, the court below affirmed the evidence adopted by the judgment of the court of first instance, and found the defendant guilty of obtaining the loan by means of receiving the loan approval decision from the non-indicted 4 and delivering the loan to the above co-defendant by obtaining the loan money from the above co-defendant. The defendant conspired to borrow the loan to the above co-defendant in excess of the loan limit per capita under the loan limit per capita under the provisions of the court below and the above co-defendant. The defendant forged the loan-related documents such as the loan application in the name of the non-indicted 1 credit union

However, in light of the records, it is recognized that the defendant received a request from the above co-defendant to borrow money exceeding KRW 30 million per capita loan limit set forth in the articles of association of the above association, and the other union members, etc. will receive a loan from the above union, prepared loan-related documents under the name of the union members, etc., and submitted them to the non-indicted 4, the representative of the above union, and delivered the loan to the above co-defendant with the approval of the above co-defendant 4, but there is no evidence to prove the facts charged that the above non-indicted 4 knew that the documents related to the loan under the name of the union members, etc. submitted by the defendant were true, and approved the loan by deceiving the above non-indicted 4 to the above co-defendant.

Rather, at the court of first instance, Nonindicted 4, the chief executive officer of the above union, was aware of the fact that at the time when the above loan approval was approved, the defendant conspired with the above co-defendant 4 in collusion with the above co-defendant 3 and borrowed money to the above co-defendant 4 in a manner of law. In the written application submitted to the court of first instance, the court of first instance cannot continue to conduct business any longer with the chief executive officer of the above union and the defendant's business side around the middle half of 1993, although Nonindicted 4 and the defendant stated that the defendant would continue to conduct business by disposing of the collateral, they would not be able to recover the loan. However, at the time when the loan approval was approved, Nonindicted 4 had already known the fact that the defendant was in collusion with the above co-defendant 4 in collusion with the above co-defendant 3 at the time of the above decision of first instance.

Nevertheless, the court below found the defendant guilty of the charge of fraud only with the evidence produced by the court below. The judgment of the court below is erroneous in finding the defendant guilty of the charge without any evidence, and it is with merit.

3. As to the second ground for appeal by the defense counsel

According to the reasoning of the judgment of the court below, the court below found the defendant guilty of the crime of violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Occupational Breach of Trust) that, by citing the evidence adopted by the judgment of the court of first instance, the co-defendant 2,647,368,00 won was loaned to the above co-defendant 128 times from February 1992 to December 1994, and thereby making it impossible to recover it impossible to obtain the same amount of profit and caused property damage equivalent to the same amount to the above co-defendant 2.

However, according to the records, the above co-defendant 5 did not actually receive a loan from the above union in order to adjust overdue interest on the above amount, and there are many parts of the documents which were arranged as loans from the above union for the purpose of arranging overdue interest on the existing loan (No. 132 of the trial record). The above co-defendant 5 also stated that the above amount was included in the document which was stated as loans from the above union in form for the purpose of arranging overdue interest on the existing loan from the above union (no. 131 of the trial record). The above amount was included in the court below's first instance court's statement that the above co-defendant 5's overdue interest on the loan was included in the above new loan from the union for the above Co-defendant 9 (no. 142 of the trial record). The above amount was also included in the loan's new loan in the court below's first instance court's statement that the above co-defendant 4 was actually paid to the union's auditor after the above new loan was not included in the above new loan amount.

Since the crime of occupational breach of trust is established when a person in charge of another person's business obtains economic benefits or has a third party obtain such benefits through an act in violation of his duties and thereby causes damage to the principal, the crime of occupational breach of trust should occur to establish the crime of occupational breach of trust. As seen above, among the charges of the crime of violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Occupational Breach of Trust), the part arranged in the document as if the above co-defendant obtained new loans from the above co-defendant in order to cover overdue interests on the existing loans from the above co-defendant in the court below as if he received new loans from the above co-defendant in the above court below is a formal loan to the above co-defendant, but in substance, the above co-defendant was written as a new loan only on the document for the purpose of arranging overdue interests on the existing loans from the above co-defendant in the court below, but it is not a new loan from the partnership, and thus, it cannot be deemed that there is a separate crime of occupational breach of trust.

Therefore, the court below should find the defendant guilty as to the act of lending corresponding to the former case only on documents for the purpose of arranging the overdue interest on the existing loans, not on the part of the defendant, among the facts charged in the violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Occupational Breach of Trust) in this case, and it should be found that the above co-defendant was guilty. However, the court below recognized the whole facts charged in the crime of violating the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Occupational Breach of Trust) of this case as guilty, and recognized it as a single comprehensive crime. The court below erred in the misapprehension of legal principles as to the crime of occupational breach of trust

4. Therefore, without examining the remaining grounds of appeal, the part concerning the crime of fraud and the crime of the crime of the crime of the violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes in the judgment of the court below cannot be maintained. Since the crime of forging private documents and the crime of the crime of the crime of the crime of the crime of the crime of the crime of the crime of the crime of the crime of the crime of the crime of the crime of the crime of the crime of the crime of the crime of the crime

Justices Song Jin-hun (Presiding Justice)