[특정경제범죄가중처벌등에관한법률위반(수재등·사금융알선등)][공2000.4.15.(104),881]
[1] The legislative intent of Article 5 of the Act on Aggravated Punishment, etc.
[2] The meaning of "any officer or employee of a financial institution" under Article 5 (1) of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes
[3] The case holding that an officer or employee of a financial institution's act of receiving interest or honorarium on the loan from a financial institution and then lending it to another person using his status does not constitute a violation of acceptance again under Article 5 (1) of the Act on the Aggravated Punishment, etc
[1] The purpose of legislation of Article 5 of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes, which punishs executive officers and employees of financial institutions in relation to their duties, is to impose strict duty of integrity on executive officers and employees as general public officials, and to secure the non-purchase of their duties, because the financial institutions are established by special laws and regulations and have public nature and have a significant impact on the national economic policies and the national economy.
[2] Article 5 (1) of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes ("Act on the Aggravated Punishment, etc. of Specific Economic Crimes") refers to all duties that an executive or employee of a financial institution handles in connection with his/her position. It includes not only the duties within his/her authority but also the duties closely related thereto and affairs that are actually handled in relation thereto, but it cannot be said that the duties that an executive or employee of a financial institution handles in his/her personal position.
[3] The case holding that an officer or employee of a financial institution's act of receiving interest or honorarium on the loan from a financial institution and then lending it to another person using his status does not constitute a violation of acceptance again under Article 5 (1) of the Act on the Aggravated Punishment, etc.
[1] Article 5 of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes / [2] Article 5 (1) of the Aggravated Punishment, etc. of Specific Economic Crimes
[1] [2] Supreme Court Decision 98Do268 delivered on September 4, 1998 / [2] Supreme Court Decision 89Do890 delivered on July 25, 198 (Gong1989, 1319), Supreme Court Decision 93Do2962 delivered on March 22, 1994 (Gong1994Sang, 1372), Supreme Court Decision 97Do2836 delivered on February 10, 1998 (Gong198Sang, 817), Supreme Court Decision 9Do325 delivered on October 8, 199 (Gong199Ha, 2376)
Defendant
Defendant
Attorney Han Ho-hoon
Seoul High Court Decision 99No1785 delivered on October 19, 1999
The judgment below is reversed and the case is remanded to Seoul High Court.
1. According to the facts and records acknowledged by the court below, while working as the head of the Korea Livestock Industry Cooperatives branch, which is a financial institution under Article 2 subparagraph 1 of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes, the defendant was in overall control of the deposit and loan business of the above branch, and was asked to prepare and lend funds at the request of 3% interest rate of 13.5% per annum from the history of the loan which is much higher than the interest of the union loan due to the lack of security to obtain the above branch's loan from the above branch's financial institution. The defendant was given funds at the above branch's own interest rate of 3.0% per annum and lent the funds to this branch's interest rate of 3.0 million won per annum and the interest rate of 5.0 million won per annum, and the defendant was given the above loan to the above branch's personal interest rate of 3.0 million won by taking advantage of his status as the principal of the branch's own financial institution and 3.5 million won per annum.
The judgment of the court below to the same purport is just, and there is no violation of the rules of evidence or misapprehension of the legal principle, as alleged in the grounds of appeal.
2. However, it is not acceptable that the court below held that the defendant's acceptance of 2,4750,000 won after deducting 1,4855,00 won per annum from the above amount that the defendant received as interest from this history as 13.5% of the above branch's interest rate constitutes a violation of acceptance under Article 5 (1) of the above Act since the defendant received as a honorarium in relation to his duties as an officer or employee of a financial institution.
The legislative intent of Article 5 of the Act, which punishs executive officers and employees of financial institutions in relation to their duties, is to impose strict duty of integrity on the executive officers and employees like general public officials and to ensure the non-purchase of their duties because the financial institutions are established by special Acts and subordinate statutes and have a public nature of their business or duties, and thus has a significant influence on the national economic policy and the national economy. In light of such legislative intent, "the duties of executive officers and employees of financial institutions" referred to in Article 5 (1) of the Act refers to all duties that the executive officers and employees of financial institutions handle in relation to their duties, and it includes not only the duties belonging to their authority, but also the duties that are closely related thereto and affairs that are handled in relation thereto. However, it cannot be said that the duties of executive officers and employees of financial institutions are dealt with in personal positions.
In this case, the defendant's receipt of money and valuables from this history is given in consideration of the interest on the loan or the lending of money. The lending of money to this history by the defendant is made by the defendant for an individual's personal interest, for an individual's personal interest, and its legal effect also belongs to the defendant's individual. Thus, the affairs are merely the affairs of the defendant's individual, and since the defendant is not the affairs of the above branch, even if the defendant received money and valuables, it cannot be deemed that the officer or employee of the financial institution receives money and valuables in relation to his duties. The defendant using the status of the branch office, and used the money as the lending money, does not change.
Unlike this, the judgment of the court below is erroneous in the misapprehension of the rules of evidence or the misapprehension of the legal principle as to the violation of the officers and employees of financial institutions, which affected the conclusion of the judgment.
3. Therefore, the judgment of the court below that found all of the facts charged in this case guilty is reversed, and the case is remanded to the court below for further proceedings consistent with this Opinion.
Justices Cho Chang-chul (Presiding Justice)