[2] In a case where an employee of a financial institution extended a loan without taking reasonable and reasonable measures such as receiving sufficient collateral in lending, whether the intent of breach of trust in the course of business is established (affirmative)

[3] Requirements to deny the intention of the crime of breach of trust on the ground that the person in charge of loan business has recovered the irrecoverable bonds even though the loan was made an inferior loan and actually became an interest to the principal

[4] In a case where a certain number of suretys are provided with and loans to a surety, in violation of a loan provision requiring a certain number of suretys, whether the full repayment by another surety constitutes a crime of breach of trust (negative), and whether a crime of breach of trust is established in a case where a loan bill is discounted in violation of a loan provision (affirmative)

[5] Where a person who administers another's business violates his/her duty and extends the lending period for existing loans to an obligor, whether a crime of breach of trust is established (negative with qualification), and where a financial institution arranged a new loan as if the customer was arranged as if he/she had received a new loan to pay overdue interests on the existing loans of the customer, if the financial institution does not actually provide a new loan to the customer, whether a crime of breach of

[6] The case holding that if a loan was made within the guarantee period and guarantee limit stipulated by the guarantor, even though the name of the corporation which is the principal debtor and the representative director changed, the crime of breach of trust is not established even if the loan was made with documents related to joint and several sureties used at the previous

[2] If an employee of a financial institution provides a loan without taking reasonable and reasonable measures such as obtaining sufficient security to secure the recovery of loan claims in the course of lending, it shall not be deemed that there was no awareness that the employee would have obtained a third party property profit and sustained a loss to the financial institution.

[3] Even if a person in charge of loan business, such as the head of a branch office of a bank, etc., extended a loan in excess of the lending limit amount to a collateral, or extended a loan with an article which cannot be secured as a collateral in violation of the bank's relevant provisions concerning the business dealing, if the loan was made by securing human resources and physical collateral and recovering a claim which cannot be recovered, and if it can be acknowledged that it falls under the scope of ordinary business operations, a certain claim that is not certain to be recovered from the loan occurred, and it cannot be viewed that the loan constitutes a violation of a duty not taking measures for securing a claim as a person in charge of loan business, or that there was a perception of such violation of a duty. However, in order to deem that there was no awareness of the violation of a duty, it should be the case of collecting a claim which cannot be recovered from the loan

[4] In the case of breach of trust, the term "if a financial loss is inflicted on the property" includes not only a real loss but also a case where the risk of actual damage is caused, and once the damage is caused, it shall not affect the establishment of the crime of breach of trust even if the damage is recovered later. Since the loan regulations of a bank that demands a certain number of guarantors are based on the judgment that there is no problem in the recovery of the claim that is to be a guarantor, if one of them is defective, or a guarantor is provided and borrowed with less than qualified guarantor, it shall not be deemed that the bank is at risk of being difficult to recover the claim at the time of the loan. The prohibition of the discount of the loan bill is due to the fact that there is a high risk of not paying the bill in the case of the loan bill, unlike the case of the highly advanced bill, it is difficult to recover from the standpoint of the loan bank at the time of the loan in violation of the regulations of the bank.

[5] In order to establish a crime of breach of trust, a person who administers another's business in violation of one's duty shall cause or threaten property damage to the principal. In case where a person who administers another's business in violation of one's duty extended the time limit for loans to the debtor, the person can recover all the loans from the debtor at the time of extension of time limit, but if the time limit has been extended, the debtor's financial situation becomes worse to the extent that the loan can not be recovered, and if the time limit has been extended, it can be said that a new damage has occurred due to the extension of time limit. Thus, the part which extended the time limit for loans cannot be said to be separate from the crime of breach of trust unless this circumstance is revealed. In addition, where the documents were arranged as if the above transaction party received new loans for the purpose of appropriating the overdue interest of the existing loans from the customer, the head of the loan ledger, etc. is deemed to have been given to the customer, but in substance, the above transaction party is stated only in documents to adjust the overdue interest of the existing loans from the customer, and it cannot be deemed to be a new loss.

[6] The case holding that even in the case of the so-called continuing guarantee of an uncertain obligation arising from a continuous transaction between the creditor and the principal debtor, even if the principal debtor has been given a loan within the guarantee period and guarantee limit stipulated by the guarantor, even though the name of the principal debtor corporation and the representative director changed, the crime of breach of trust is not established, since the guarantor is in principle obligated to perform the entire obligation that the principal debtor has failed to perform among all obligations arising during that period.

(7) The summary of the facts charged against the Defendants is that the non-indicted 1 and the director of the branch office of the non-indicted 1 and the non-indicted 3 will incur losses to the non-indicted 1 and the non-indicted 1 and the non-indicted 1 and the non-indicted 1 will incur losses to the non-indicted 1 and the non-indicted 3 will incur losses to the non-indicted 1 and the non-indicted 1 and the non-indicted 1 will incur losses to the non-indicted 1 and the non-indicted 6 will incur losses to the non-indicted 1 and the non-indicted 1 and the non-indicted 3 will incur losses to the non-indicted 1 and the non-indicted 6 will incur losses to the non-indicted 1 and the non-indicted 1 will be provided with the non-indicted 1 and the non-indicted 1 will be provided with the non-indicted 1 and the non-indicted 1 will be provided with the non-indicted 1 and the non-indicted 1 will incur losses to the non-indicted 3's joint surety.

2. Determination on the grounds of appeal as to (1), (3), and (2) facts of the facts charged in the instant case

In a case where two or more co-offenders are not required to be punished by law, and if two or more persons intend to jointly process a certain crime and realize such a crime, a public offering is established among several persons, even if there was no overall conspiracys, and if such combinations took place, they shall be held criminal liability as a co-principal for the act of another person, even if they were not directly involved in such public offering, (see, e.g., Supreme Court Decisions 9Do1435, Jul. 27, 1993; 9Do4923, Mar. 14, 200). The intention of the crime of occupational breach of trust is established by combining with the awareness that a person who administers another's business with an intention to incur property damage to the principal and an intention to obtain property benefit, and thus, constitutes a violation of one another's own or a third party's own property benefit, and thus, constitutes a breach of one's own interest and an indirect act of breach of trust, 90Do196, by asserting that there was no reasonable motive for the defendant's own interest.

In addition, in the case of breach of trust, the term "where property damage is inflicted on the property" includes not only a real damage but also a case where the risk of actual damage is caused, and once the damage is caused, it shall not affect the establishment of the crime of breach of trust even if the damage is recovered later (see Supreme Court Decision 9Do4923, Mar. 14, 200; Supreme Court Decision 99Do338, Dec. 8, 2000, etc.). Since the loan regulations of a bank demanding a certain number of guarantors are based on the judgment that there would be no problem in the recovery of the claim that is to be a guarantor, even if one of them is missing or less, if the collection of the claim is conducted by another guarantor, it cannot be said that it is difficult at the time of the bank's view that it is difficult to collect the claim at the time of the loan, and it is highly difficult to collect the bill at the same time because there is no possibility that the bill will not be a discount of the bill from the standpoint of the bank.

Examining the evidence adopted by the court of first instance as cited by the court below in light of the above legal principles and records, it can be sufficiently recognized that the defendants conspired with the criminal intent of breach of trust and that there was a risk of making it difficult to recover loans to the Nonghyup among the facts charged (1), (3) and (2) and each of the above facts charged (the statement made by the public prosecutor at the court of first instance and the prosecutor's office is conducted by meeting and pressure, and there is no voluntariness. However, considering all the circumstances such as the form and contents of each protocol of examination of suspect's interrogation prepared by the public prosecutor, the same defendant and the co-defendant at the court of first instance and the court of first instance appear to have made their statements at will.)

3. Judgment on the grounds of appeal on (1)-2, (4)-7 of the facts charged in the instant case

A. The lower court upheld the first instance judgment that convicted the Defendants of the facts charged in the instant case (2), (4) through (7), but it is difficult to accept the lower court’s determination on this part of the facts charged for the following reasons.

B. First, among the facts charged in the instant case, we examine (1)-2 of the facts charged.

The term "where property damage is caused by the property damage" which is the constituent element of the crime of breach of trust includes not only the actual damage but also the case where the risk of actual damage to property has been caused by the loan. Thus, this part of the facts charged cannot be ruled out from the risk that dong style, the guarantor, after the loan, will not sign the loan agreement. Thus, there is no room to regard it as a case where the risk of actual damage to property has been caused by the loan. However, according to the records, in January 15, 1996, the above loan date, the non-indicted 1 consented to the loan guarantee and sent it to Nonghyup by facsimile by copying the resident registration certificate and the public official certificate (refer to 9 pages of investigation record), and it is difficult to find that there is no possibility that the non-indicted 1, the defendant's signature on the loan guarantee date, even if the non-indicted dong style was signed on the loan guarantee contract on the loan date, it is difficult to find out the possibility that the non-indicted 1, i.e., the defendant's signature at the above risk of property damage.

Therefore, the judgment of the court below which found the defendants guilty on the basis of this part of the facts charged by the prosecutor shall be deemed to have committed an unlawful act that affected the conclusion of the judgment by misunderstanding the facts against the rules of evidence or misunderstanding the legal principles on the intent

C. Next, we examine (1)-5 and (7)-related facts of the facts charged in the instant case.

In order to establish a crime of breach of trust, an actor's act of breach of duty must cause or threaten property damage to the principal. In case where a person who administers another's business violates his duty and extended the time limit for loans to the debtor, the principal may recover all the loans from the debtor at the time of the extension of time limit, but if the time limit has been extended, the debtor's financial situation becomes worse so long as the time limit can not be recovered, it can be said that a new loss has occurred due to the extension of time limit. Thus, it cannot be said that a new breach of trust is established unless this circumstance is revealed (see Supreme Court Decision 9Do1864 delivered on July 9, 199). In order to cover the overdue interest on the existing loans of the customer, where the above transaction party was arranged as if the above transaction party received new loans from the customer, the principal of loans, etc. were actually given as if the loan was actually given to the customer, and it cannot be deemed that the above transaction party was 290Da16799 delivered on account of the loan in arrears of the existing loans of the customer.

(7) Of the facts of the instant crime, the Defendants did not grant a new loan to Nonindicted Party 1, but rather extended the term of the loan. According to the reasoning of the lower judgment, it is clear that the Defendants extended the term of the instant crime, and the record, the crime of Paragraph (1) is also deemed to have committed a new loan in the form of the instant crime. However, on February 17, 1996, the Defendant prepared a letter of credit limit trading agreement with this creative State as the principal debtor, and loaned a bill of KRW 30 million at the face value issued by YY and KRW 30 million on June 10, 1996, and loaned a bill of KRW 30 million at the face value issued by YY and KRW 1,000 on June 10, 1996. In substance, the above payment date substituted the bill with another bill of exchange only on the document with the same face value as the issuance of YY, and it can be seen that the previous bill was repaid as if it was repaid on the document.

Therefore, in light of the above legal principles, even if the Defendants knew of the fact that the financial situation of the obligor was aggravated enough to recover the loan, and there was no evidence to deem that the financial situation of the obligor was aggravated to the extent that the loan would no longer be recovered, even though the Defendants were notified of the extension of the loan term or the Kim hee to the effect that the debtor would no longer become the principal obligor, it cannot be said that the crime of breach of trust is established by removing from the extension of the loan term or replacement.

Therefore, the judgment of the court below which found the defendant guilty of this part of the facts charged shall be that it erred by misunderstanding facts against the rules of evidence or by misunderstanding the legal principles on the occurrence of damages which constitute the elements for the crime of breach of trust.

D. Lastly, I will examine (1)-4, (6)-4, of the facts charged in this case.

"Act in violation of the duty" in the crime of breach of trust includes any act in violation of a fiduciary relationship with the principal by failing to perform an act that is naturally expected not to perform, or by doing an act that is expected not to perform, under the provisions of law, the content of the contract, or the good faith principle, in light of specific circumstances, such as the content and nature of the business to be performed (see Supreme Court Decision 9Do338, Dec. 8, 200).

However, among the facts charged in this case (4)-4, (6) The crime of this case was committed with loans made by using the documents relating to joint and several sureties that had been previously submitted, even though the remaining joint and several sureties was invalidated. However, according to the records, it can be acknowledged that, upon receiving a request from Nonindicted 1 on November 10, 1995 and receiving a bill discount from the representative director, the non-indicted 4 corporation whose representative director is the non-indicted 2 guaranteed a transaction agreement with a bill discount amounting to KRW 1 year, the guarantee amount of KRW 30 million and KRW 30 million, among the facts charged in this case (4)-, and the facts charged in this case are as follows: (6) the bill discount within the guarantee amount within the above guarantee amount.

Therefore, even in the case of so-called continuing guarantee that the principal debtor guarantees obligations arising from the continuous business relationship between the creditor and the principal debtor with an uncertain duration, the guarantor is in principle liable to perform all obligations that the principal debtor does not perform (see Supreme Court Decisions 91Da9091, Dec. 24, 1991; 94Da21931, Apr. 7, 1995; 94Da21931, Apr. 7, 199). In the case of this case, the remainder of this case is naturally liable to guarantee obligations under subparagraph (1) and (6) of the facts charged of this case. Thus, the documents concerning joint and several sureties are not entirely necessary to be bound from the surplus of this loan. Accordingly, it cannot be said that any act of breach of duty with the loan of this case constitutes an act of lending. (4) Of the facts charged of this case, the name of the principal debtor, the representative director of non-indicted 4 corporation, and the name of the corporation and the name of the corporation cannot be changed or terminated by changing.

In addition, as long as the remainder of the loan is liable for guarantee, there is no room for causing any damage to the agricultural cooperative, and in this respect, the breach of trust can not be established.

Nevertheless, the judgment of the court below which found the defendant guilty of this part of the facts charged shall be that it erred by misunderstanding facts against the rules of evidence, or by misunderstanding the legal principles as to the act of breach of trust, which constitutes the elements of breach of trust, and the occurrence of damages.

4. Conclusion

Therefore, the judgment of the court below cannot be maintained with respect to the Defendants’ occupational breach of trust among the facts charged in this case (1)-2, (4) through (7). Since the Defendants’ occupational breach of trust relation to the remaining parts of the judgment of the court below as a concurrent crime under the former part of Article 37 of the Criminal Act, each of the above occupational breach of trust was sentenced to one punishment against the Defendants, the judgment below is reversed and remanded to the court below. It is so decided as per

Justices Song Jin-hun (Presiding Justice)