[2] The time when the part rejected by the court of final appeal on the grounds that the argument in the grounds of final appeal is groundless (=the time the judgment of the appellate court is rendered

[3] In a case where the act of lending a loan in excess of the limit to the same person was prosecuted separately for the crime of occupational breach of trust as a violation of the former Credit Union Act and the act of lending a loan without securing physical security, the case holding that it is not permissible to acknowledge the guilty of occupational breach of trust due to the above act without changing a bill of indictment even though the act of lending a loan exceeding the limit to the limit to the company constitutes a violation of the former Credit Union Act,

A. Even if a loan based on a person who has borrowed a loan under the name of another member, etc. does not exceed the lending limit to the same person, if the loan is based on a person to whom it actually belongs, the act of lending goes against Article 32 of the former Credit Cooperatives Act (wholly amended by Act No. 5506 of Jan. 13, 1998 and enforced April 1, 1998; hereinafter the same shall apply) (see, e.g., Supreme Court Decisions 9Do1280, Nov. 12, 199; 2001Do3531, Nov. 13, 2001).

In light of the above legal principles and records, it is proper that the court below, after remanding the case, punish the defendant as a violation of the former Credit Union Act by applying Article 32 and Article 96 (1) 1 of the former Credit Union Act to loans exceeding the lending limit to each same person of this case, and there is no error of law as to the application of Acts and subordinate statutes.

B. The portion rejected by the court of final appeal on the ground that the assertion in the grounds of final appeal is groundless shall be deemed to have become final and conclusive at the same time with the rendering of the judgment, and the defendant shall not be contested against this part, and the court that has been remanded shall not make a decision contrary thereto (see Supreme Court Decisions 87Do2111, Dec. 22, 1987; 2001Do265, Apr. 10, 2001, etc.).

According to the records, the defendant appealed the judgment of the court below before the remand and reversed the grounds of appeal that there was an error in the misapprehension of the legal principles as to the mistake of facts and the violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes [hereinafter "Occupational Breach of Trust" and the violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes] as to the part of the judgment of the court below before the remand. The judgment of the court of first instance is dismissed on the ground that there is no ground of appeal as to the part concerning the occupational breach of trust due to loans to the non-indicted 1, 2, 3, 4, and 5, and the part concerning the non-indicted 6, 7, 8 as to the non-indicted 6, 7, and 8's occupational breach of trust due to the violation of the rules of evidence. However, the court below reversed all of the judgment of the court of first instance on the grounds that the non-indicted 1's remaining guilty part against the defendant and the non-indicted 1's new sentence against the non-indicted 6, 7,781, and 2.

Therefore, the part of the Defendant’s occupational breach of trust due to the Defendant’s loans to Nonindicted 1, 2, 3, 4, and 5 was rejected on the ground that there was no ground of appeal by the judgment of remand. Accordingly, the Defendant’s ground of appeal on this part cannot be seen as a legitimate ground of appeal.

2. Judgment on the prosecutor's appeal

According to the records, in this case, the prosecutor found the Defendant guilty on the part of the former Credit Union Act that the Defendant extended loans to Nonindicted 6, 7, and 8 (hereinafter “the act of lending exceeding the limit on the same person”) to be a violation of the former Credit Union Act, and prosecuted the Defendant’s act of lending “the act of obtaining property benefits equivalent to the amount of each loan without securing physical collateral and causing damage to the Industrial Credit Union,” respectively, as a separate crime of occupational breach of trust. The first instance court and the lower court before and after the remand also deliberated and judged on the premise that the act of lending exceeding the limit on the loans constitutes a violation of the former Credit Union Act, separate from the act of constituting the violation of the former Credit Union Act. After remanding, the lower court found the Defendant guilty on the part of the occupational violation of the former Credit Union Act due to the lack of proof of a crime of breach of trust, and provided that the act falling under Article 96(1)15(1)6(1) of the former Credit Union Act or Article 96(1)5(1)6(3) of the former Credit Union Act cannot be punished for a concurrent act of breach of trust under Article 96(15(3) of the former Act.

Therefore, even if the act of lending exceeding the limit of the previous Credit Union constitutes an occupational breach of trust in addition to the act of violating the former Credit Union Act, it is clear that the facts charged of the occupational breach of trust are not included in the facts charged of the occupational breach of trust due to loans exceeding the limit, and furthermore, the act of lending funds without securing physical security differs from the contents and result of the act, the form of breach of trust, and the contents of damages suffered by the association. Thus, in the instant case where the latter act was prosecuted for the occupational breach of trust without changing the indictment, it is not permissible to acknowledge the guilty of the occupational breach of trust due to the electronic act without changing the indictment to the effect that it would substantially disadvantage the defendant’s defense.

Therefore, it is proper that the court below, after remanding the case, found the defendant guilty of the occupational breach of trust due to loans exceeding the limit of the court below while not guilty of the occupational breach of trust due to the defendant's loans to non-indicted 6, 7, and 8. There is no error of law by misapprehending the legal principles on the breach of trust or by misapprehending the Supreme Court precedents

3. Conclusion

Therefore, each appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Ji-hyung (Presiding Justice)