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(영문) 헌재 2003. 3. 27. 선고 2001헌바39 판례집 [새마을금고법 제66조 제2항 제1호 위헌소원]
[판례집15권 1집 246~265] [전원재판부]
Main Issues

1. The meaning of the principle of clarity in the principle of no punishment without law

2. Whether the matters subject to the approval by the supervisory agency are included in the matters to be approved under the Enforcement Decree of the former Community Credit Cooperatives Act (amended by Act No. 6493 of Jul. 24, 2001) with respect to Article 66(2)1 of the former Community Credit Cooperatives Act (amended by Act No. 6493 of Jul. 24, 2001) (hereinafter “instant legal provisions”), which are not the law (affirmative

3. Whether applying the legal provisions of this case to a person who violates the approved matters under Article 23 of the Enforcement Decree of the Community Credit Cooperatives Act based on Article 26 (3) of the above Act violates the principle of no punishment without law (affirmative)

Summary of Decision

1. Article 12(1) of the Constitution provides that the principle of no crime without the law shall be the core of the principle of no punishment without the law, which provides for crimes and punishment as a law within the formal meaning of the legislative body, and furthermore, even if it provides for a law within the formal meaning, anyone can expect what the legal provision intends to punish and what punishment is and what kind of punishment is, and therefore, can clearly define the elements of a crime so that anyone can decide his act.

2. The matters to be approved under the legal provisions of this case are not only the matters to be approved under the law, but also the matters to be approved under the Enforcement Decree of the Act upon delegation of the law, unless they are contrary to the principle of prohibition of comprehensive delegation. However, from the point of view of the principle of no punishment, even if the necessity of delegation legislation can delegate the specific contents of the matters related to the duties of community credit cooperatives or the National Federation of Community Credit Cooperatives to subordinate statutes due to the necessity of delegation to subordinate statutes, the end of the legal provisions of this case, which are the penal provision, only if the specific matters to

may be included in the scope of “approval”.

3. Article 26(3) of the above Act only delegates the restriction on borrowing of funds related to credit business under subparagraph 1 of Article 26, the limit on lending, the operation of surplus funds, the scope of entrusted business under subparagraph 1(6) and other necessary matters to specify the “limit on lending” through the enforcement decree, although it does not provide for the matters to be approved by the supervisory organ, it only sets forth the specific contents of the “limit on lending” under Article 23 of the Enforcement Decree, which is a subordinate statute, and only stipulates that the pertinent matters shall be approved by the supervisory organ. In such a case, from the perspective of the criminal, it is difficult to expect that certain matters are approved through the organic and systematic interpretation of the instant legal provisions and the relevant legal provisions, which are punishment provisions.

Therefore, the application of the legal provision of this case, which is a punishment provision, to Article 23 of the Enforcement Decree of the Act, which independently provides the matters to be approved without delegation of the mother law, violates the principle of clarity of the principle of no punishment without law, which seeks to guarantee the predictability of criminals in relation to crimes and punishment, and in such a case, it is difficult to harmonize with the ideology of the principle of no punishment without law, which provides the crime and punishment in the sense that the type of the act prohibited by the legal provision of this case, i.e., the substance of the prohibition, should only take place in the subordinate law, which is not the related legal provision, rather than the related legal provision. Therefore, the legal provision of this case, which applies the punishment provision

Separate Limited Constitutional Opinion of Justice Kim Young-il

The subject of the instant trial is a part of the constituent elements of the penal provision applicable to the facts charged by the claimant, namely, the legal provision of this case and Article 23 of the Enforcement Decree of the same Act. Article 23 of the Enforcement Decree of the same Act deviates from the scope of delegation under Article 26 (3) of the Act and also violates the principle of no punishment without the law, by prescribing the limit of loan as the approved matters subject to punishment under the legal provision of this case. However, it is difficult to readily conclude that the scope of delegation deviates from the scope of delegation in relation to the disciplinary responsibility of a credit cooperative officer, etc. related to loans exceeding the limit of loan amount, and the scope related

Since the unconstitutionality can be removed, the statutory provisions of this case, among the approved matters, can eliminate the unconstitutionality by excluding the approved matters provided in Article 23 of the Enforcement Decree of the Act. Therefore, it is reasonable to make a decision of limited unconstitutionality within the scope of the unconstitutionality.

The constitutional opinion on the Constitutionality of Justice Han-dae, Justice Jeon Jong-soo, and Justice Kim Yong-zin

Article 23 of the Enforcement Decree of the Act set the specific scope of the lending limit, and further setting the scope of the lending limit as the matters to be approved by the president of the federation in a way to substantially suppress the lending in excess of the limit is consistent with the legislative intent of the person who has been delegated by the explicit delegation of Article 26(3) of the Act. In addition, in light of the fact that Article 66(2)6 of the Act explicitly stipulates loans in excess of the lending limit under the Enforcement Decree in accordance with delegation of Article 26(3) of the Act explicitly stipulates loans in itself as the elements of crime according to the delegation of Article 26(3) of the Act, the act of lending in excess of the lending limit under the Enforcement Decree of the Act is an act of lending in excess of the above limit, it is difficult to conclude that the "violation of the approval of the president of the federation" with the same substance as the elements of crime, and thus, it is difficult to conclude that the statutory provision of this case is a violation of the Enforcement Decree of the Act only one of the legal provisions of this case.

Documents subject to adjudication;

Article 66 (Penalty Provisions) (1) of the Community Credit Cooperatives Act (amended by Act No. 5462 of Dec. 17, 1997, and amended by Act No. 6493 of Jul. 24, 2001) and (2) shall be omitted.

(2) Any officer, employee or liquidator of a credit cooperative or federation who commits any of the following acts shall be punished by imprisonment for not more than three years or by a fine not exceeding five million won:

1. Where it fails to obtain authorization or approval with respect to matters which should be authorized or approved by the supervisory agency;

2. through 7. omitted.

8. Deleted;

9. Omitted.

(3) omitted.

[Reference Provisions]

Article 26 (Types of Business, etc.) (1) of the Community Credit Cooperatives Act shall carry out all or part of the following business in order to achieve the purpose under Article 1:

1. Credit service:

(a) Receipt of deposits and installment savings from members;

(b) Lending loans to members;

(c) Domestic exchange;

(d) Business agency of the State, public organizations, and financial institutions;

(e) Protective deposits for members;

2. Cultural welfare business;

3. Educational projects for members;

4. Community development projects;

5. Mutual-aid business for members;

6. Business entrusted by the Federation;

7. Projects entrusted by the State or public organizations;

8. Other projects necessary to attain the objectives, which are approved by the competent Minister.

(2) The projects referred to in paragraph (1) 2 through 4 shall be determined by the articles of incorporation within the limit of 30/100 of the total amount of investments and reserve funds of the credit cooperative.

(3) The limit on borrowing of funds related to the credit business under paragraph (1) 1, the limit on lending, operation of surplus funds, the scope of the entrusted business under paragraph (1) 6, and other necessary matters shall be determined by the Presidential Decree.

(4) Matters necessary for implementing projects under paragraph (1) 5 shall be prescribed by Presidential Decree.

(5) A depository shall keep not less than 10/100 of the balance of deposits and installment savings as of the end of the preceding month as the reserve for repayment, and deposit not less than 1/2 of the reserve for repayment in the federation.

(6) and (6).

Except as approved by the president of a federation, loans to the same person of a credit cooperative under Article 23 of the Enforcement Decree of the Community Credit Cooperatives Act (amended by Presidential Decree No. 15684, Feb. 24, 1998) shall not exceed 10/100 of the total amount of contributions and reserve funds of the credit cooperative concerned.

Reference Cases

Constitutional Court Decision 92Hun-Ba33 on March 11, 1993, Supreme Court Decision 5-1, 29

Constitutional Court Decision 93Hun-Ga4 on July 29, 1994, Supreme Court Decision 6-2, 15

Parties

Cheong-gu Cheong-man

Attorney Kim Jong-sik

Daejeon District Court 2001No207 Violation of the Community Credit Cooperatives Act

Text

The part concerning "approval" under Article 66 (2) 1 of the former Community Credit Cooperatives Act (amended by Act No. 5462 of Dec. 17, 1997, and amended by Act No. 6493 of Jul. 24, 2001) applies to "approval" under Article 23 of the Enforcement Decree of the Community Credit Cooperatives Act (amended by Presidential Decree No. 15684 of Feb. 24, 1998) is in violation of the Constitution.

Reasons

1. Case summary and the subject matter of the trial;

A. Case summary

(1) The petitioner is the chief director of the ○○ Saemaul Depository. In the event that the loan exceeds 300 million won, the loan limit amount of the above community credit cooperatives under the relevant regulations, the petitioner was indicted for the reason that he and the employees of the above community credit cooperatives and borrowed a gold of 500 million won to the ○○ industry without obtaining approval from the chief executive officer of the National Federation of Community Credit Cooperatives, and was sentenced to one year of imprisonment in the first instance ( Daejeon District Court 2000Da40666).

(2) The petitioner filed an application for adjudication of unconstitutionality with respect to Article 66(2)1 of the former Community Credit Cooperatives Act, which is applicable mutatis mutandis in the appellate court (No. 2001No207), but the appellate court dismissed all the above appeal and the application for adjudication of unconstitutionality on May 24, 2001. The petitioner filed an application for adjudication of unconstitutionality in accordance with Article 68(2) of the Constitutional Court Act on June 7, 2001.

(b) Object of adjudication;

The subject of the instant adjudication is whether the part concerning “approval” under Article 66(2)1 of the former Community Credit Cooperatives Act (amended by Act No. 5462 of Dec. 17, 1997, and amended by Act No. 6493 of Jul. 24, 2001; hereinafter “Act”) is unconstitutional, and its contents and related provisions are as follows (the petitioner files a claim for the entire subject of adjudication under Article 66(2)1 of the Act, but the part applied to the petitioner in the instant case is related to “approval” under the above provision, and thus, the subject of the instant adjudication is subject to the instant adjudication.

Only this is applicable)

(1) Clause subject to adjudication

Article 66 (Penalty Provisions) (1) of the Act

(2) Any officer, employee or liquidator of a credit cooperative or federation who commits an act falling under any of the following subparagraphs shall be punished by imprisonment for not more than three years or by a fine not exceeding five million won:

1. Where it fails to obtain authorization or approval with respect to matters which should be authorized or approved by the supervisory agency;

2. through 9. Omitted.

(3) omitted.

(2) Relevant provisions

Article 26 (Types, etc. of Business) (1) of the Act shall perform all or part of the business enumerated in the following subparagraphs in order to achieve the purpose of Article 1:

1. Credit service:

2. through 8. Omitted.

(2) omitted.

(3) The limit on borrowing of funds related to the credit business under paragraph (1) 1, the limit on lending, operation of surplus funds, the scope of the entrusted business under paragraph (1) 6, and other necessary matters shall be determined by the Presidential Decree.

(4) Hydi omitted

The limit of loans to the same person as a credit cooperative under Article 23 (Limitation of loans) of the Enforcement Decree of the Act shall not exceed 10/100 of the total amount of investments and reserve funds of the credit cooperative except where the head of the federation approves such loans.

2. A summary of the petitioner's assertion and a summary of the grounds for dismissing the court's motion;

A. Summary of the claimant's assertion

According to the legal provisions of this case and Article 23 of the Enforcement Decree of the Act, loans extended by a credit cooperative exceeding a certain limit on the same person are subject to punishment in the approval of the head of the federation, there is no clear standard for approval of the head of the federation, and it is difficult to determine whether approval is granted even if an application for

In other words, the provision of this case, which provides that punishment shall depend on the uncertain facts of approval by the president of the federation, is against the principle of clarity, which is the content of the principle of no punishment without law, and furthermore, delegation of substantial contents of the elements of punishment to the internal regulations of the National Federation without direct provision of law

It also goes against the principle of no crime or punishment without law that must be determined by law in a proper sense.

B. Summary of the court's dismissal of the motion

Article 66 (2) 1 of the Act provides that an executive officer shall be punished by an act without obtaining authorization or approval for the matters subject to authorization or approval from a supervisory agency, and a certain act is subject to punishment in writing. Thus, it does not violate the principle of no punishment without the law because it is difficult to see that an executive lacks clarity and predictability of the elements

3. Determination

A. Article 12(1) of the Constitution of the Republic of Korea provides, “No person shall be subject to punishment, security disposition, or forced labor except in accordance with law and due process.” This principle is the core content of the provision of a law in the formal meaning of a crime and a punishment by the legislative body. Furthermore, even if the provision of a law in the formal meaning is provided, any person may expect the provision in the law to clearly stipulate the elements of a crime so that he/she can anticipate and determine his/her act. In other words, if the elements of a punishment provision are either abstract or ambiguous concept or excessively comprehensive, if the elements of a punishment provision are used or are too broad, a statutory offender cannot expect what act is prohibited through a penal provision and what punishment is possible, so the principle of no crime and a punishment under the Constitution of the Republic of Korea requires not only the provision in the law but also the clarity of the legal provision itself.

However, it is not possible to uniformly determine which degree the elements of the punishment law should be clear, and it should be determined by comprehensively taking into account the characteristics of each constituent element and the conditions that caused such legal regulation or the degree of punishment (see, e.g., Supreme Court Decision 5-1, 29, 47, Jul. 29, 1994; Constitutional Court Decision 6-2, 15, 32-33, etc.).

B. The instant legal provision is a penal provision that provides that an officer, employee, or liquidator of a credit cooperative or federation shall be punished by imprisonment for not more than three years or by a fine not exceeding five million won, in the case of “when approval is not obtained in respect of matters to be approved by a supervisory agency.” In the case of a statutory provision that sets the type of an act of crime and a penal provision that is a penalty provision that is a separate provision, it is ordinary to specify the pertinent legal provision that constitutes the elements of a crime in the penal provision. In other words, a penal provision is a provision

In general, it can be said that the legal text that includes the elements of the law, such as Article 0, Article 4, and Article 4, is generally listed in a daily, detailed, and timely manner. However, the elements of the legal provision of this case are only “when approval is not obtained in respect of the matters that require approval from the supervisory agency,” and therefore, it is problematic whether the elements of the legal provision of this case are excessively comprehensive or broad so that it does not violate the principle of clarity of the principle of no punishment without law.

C.First, we examine whether the scope of "Supervisory Body" as provided in the legal provision of this case is clear.

Article 59(1) of the Act provides that “A credit cooperative and federation established under this Act shall be supervised by the competent Minister: Provided, That a credit business shall be supervised by the competent Minister in consultation with the Financial Supervisory Commission (the Minister of Finance and Economy before the amendment by Act No. 5505, Jan. 13, 1998).” Article 60 of the Act provides that “The competent Minister may delegate part of his authority under this Act to the Seoul Special Metropolitan City Mayor, the Metropolitan City Mayor, the Do governor or the Chairperson,” and Article 61(1) of the Act provides that “The Chairperson shall guide and supervise a credit cooperative under this Act or under the conditions as prescribed by this Act or by the articles of incorporation of regulations necessary therefor.”

As such, there is no room to regard the scope of “Supervisory Body” under the legal provision of this case as unclear as to who is a supervisory body concerning the business of community credit cooperatives or the National Federation of Community Credit Cooperatives.

Next, we examine whether the scope of “matters subject to approval” as stipulated in the legal provision of this case is clear.

The law consists of Chapter 1 General Provisions, Chapter 2 Cooperatives, Chapter 3 Federation, Chapter 4 Supervision, Chapter 5 General Rules, and Chapter 6 Penal Provisions. The legal provisions of this case are one of the penal provisions of Chapter 6 penal provisions. Thus, the provisions of Chapter 6 penal provisions are the penal provisions of this case in principle in order to secure compliance with the contents stipulated in Chapter 5 of the Act. Thus, the provisions of this case are the provisions that punish a violation in principle in order to ensure compliance with the contents stipulated in Chapter 6 penal provisions, and therefore, the legal provisions of this case should, in principle, be deemed as a provision to secure compliance with the matters stipulated in Chapter 5 of the Act that require approval from supervisory agencies in relation to the duties of

However, due to the increase of social functions in modern countries and the complexity of social phenomena, people

Since all of the matters concerning rights and duties can not be separately prescribed by the law enacted by the legislative department, it cannot be exceptionally permitted to delegate subordinate laws and regulations. Thus, the matters to be approved under this Act is not required to be defined in the law itself in a conclusive and complete manner, but can be delegated to subordinate Acts and subordinate statutes after setting the outline of the approved matters under the Act. Thus, unless such delegation does not violate the principle of the prohibition of comprehensive delegation, the specific contents of the approved matters shall be deemed to constitute “matters subject to approval by the supervisory agency” as well as “matters subject to approval by the supervisory agency” when the specific contents of the approved matters are prescribed by the subordinate Acts and subordinate statutes.

However, from the point of view of the principle of no punishment without law, even if it is possible to delegate the specific contents related to the duties of the community credit cooperatives or the National Federation of Community Credit Cooperatives as subordinate statutes due to the necessity of delegation legislation, it can be included in the scope of "approval" under the legal provisions of this case, which is a penal provision, only when it is clearly stated that the delegated matters are approved in the law itself at least after delegation.

If why why is, if the law itself does not stipulate that the pertinent matter is approved by the law, but it has been delegated by the subordinate law, it would be difficult to understand what matters should be approved by the supervisory agency, and whether it should be punished if it is violated by the law. In other words, it would be because it would be difficult to understand through the law what matters should be approved by the supervisory agency, and what kind of matters should be punished by the law. In other words, it would allow administrative legislation to create a penal provision that is not anticipated by the law, so it would be contrary to the principle of no punishment without the law, and it would be difficult to meet the predictability of the criminal who requires the principle of clarity, which is the derivatives of the principle of no punishment without the law.

D. He returned to the instant case, and Article 26(3) of the Act delegates to the Enforcement Decree the scope of borrowing funds related to credit business under paragraph (1) 1, the limit of lending, the operation of surplus funds, the scope of the entrusted business under paragraph (1) 6, and other necessary matters.” Meanwhile, Article 23 of the Enforcement Decree of the Act provides that “The scope of lending funds to the same person shall not exceed 10/100 of the total amount of the investment and the reserve funds of the relevant credit cooperative, except where the president of the Federation approves the extension of legislative authority delegated under the above Act.” Thus, Article 23 of the Enforcement Decree of the Act provides that “The loans to the same person of the credit cooperative shall not exceed 10/100 of the total amount of the investment and reserve funds of the relevant credit cooperative.”

At the same time, the government decided the Do and obtained the approval of the president of the federation who is a supervisory organ for the excess loans.

As a result, Article 26(3) of the parent corporation only delegates the “limit of loans” to the enforcement decree and does not provide that it shall be approved by the supervisory authority, but only stipulates the specific contents of the “limit of loans” in Article 23 of the Enforcement Decree of the Act, which is a subordinate statute, which shall be approved by the supervisory authority. However, in such a case, it is difficult to predict the “limit of loans” through the organic and systematic interpretation of the instant legal provision, which is a punishment provision, and the relevant legal provision.

Therefore, without clearly stating that the subject of regulation is a matter subject to approval by supervisory agencies, applying the legal provision of this case, which is a punishment provision, even with regard to the matters to be approved only under Article 23 of the Enforcement Decree, is in violation of the principle of clarity in the principle of no crime without the law, which seeks to guarantee the predictability of criminals against crimes and punishment. In such a case, the type of the act prohibited by the legal provision of this case, i.e., the substance of the prohibition, must only appear in the subordinate law, not the relevant legal provision, and therefore, it is difficult to harmonize the ideology of the principle of no crime without the law, which provides the crime and punishment as a law.

4. Conclusion

Therefore, as long as Article 23 of the Enforcement Decree of the National Assembly Act, which applies the legal provisions of this case, which are punishment provisions, to Article 23 of the Enforcement Decree of the National Assembly, which newly establishes the elements of crime without delegation of the parent law, the legal provisions of this case are in violation of the principle of no punishment without law, and it is so decided as per Disposition. This decision is in accordance with the opinion of the participating Justices by the assent of all participating Justices, except there is a separate limited constitutional opinion of Justice Kim Young-il as of May below, and a dissenting opinion of Justice

5. Separate Limited Constitutional Opinion of Justice Kim Young-il;

The majority opinion held that the object of the instant trial is limited to the part concerning “approval” in Article 66(2)1 of the Act, i.e., the legal provision of this case, and that the application of the instant legal provision to the approval under Article 23 of the Enforcement Decree is unconstitutional. However, the majority opinion is not appropriate for the subject of the instant case, which is the issue as to whether the constituent elements of the penal provision applicable to the criminal facts of the claimant violate the Constitution, and it is apparent that the main text of the case and the composition of the grounds supporting it are meaningful

B. Having conflicting parts, I would like to express a separate limited constitutional opinion that differs from the order as follows.

A. Issues of the Majority Opinion concerning the subject matter of the trial

(1) Article 66(2)1 of the Act provides for comprehensive requirements for punishing a case where an executive officer, etc. of a credit cooperative fails to obtain approval from a supervisory agency in the course of performing his/her business affairs of the credit cooperative and statutory punishment for the matters that require approval from a supervisory agency in accordance with Article 66(2)1 of the Act, stating that “a loan to a same person of the credit cooperative shall not exceed 10/100 of the total amount of the investment and the reserve funds of the credit cooperative, except for the case where the head of the federation grants approval, and a loan exceeding the limit shall be approved by a supervisory agency in accordance with Article 26(3) of the Act, which is delegated by the Enforcement Decree of the Act, by specifying the limit of the loan related to credit business of the credit cooperative.”

In detail, Article 66 (2) 1 of the Act, namely, Article 66 (2) of the Act provides that the legal provision of this case is a penal provision that provides for the public nature and reliability of community credit cooperatives and the protection of depositors as the legal interest protected by the law, and comprehensively provides for the elements of the prohibition, which are the substance of the prohibition, "when the approval is not obtained". The provision of this case sets the limit of loans according to the delegation of Article 26 (3) of the above Act, while setting the limit of loans, it also sets a separate provision that

Therefore, the instant legal provision and the instant Enforcement Decree provision combine each other, which punishs a single penal provision that “if an executive officer, etc. of the Fund has made an excess loan exceeding the limit of the loan without obtaining the approval of the president of the Federation, which is a supervisory organ, constitutes a single penal provision.”

(2) On the other hand, the claimant filed a constitutional complaint under Article 68(2) of the Constitutional Court Act against the legal provision of this case under the charge that "if an executive officer, etc. of a credit cooperative intends to make a loan exceeding 300 million won, a loan limit of 50 million won, in accordance with the relevant provisions, he/she shall obtain approval from the president of the Federation, notwithstanding the fact that he/she obtained approval from the National Federation," and the summary of the reason for the claim is that "if an executive, etc. of a credit cooperative intends to make a loan in excess of the amount of the loan limit, he/she shall demand the approval from the president of

In a case where criminal punishment is imposed under the legal provisions of this case, the legal provisions of this case and the provisions of the Enforcement Decree of this case alone do not present any standard on the possibility of obtaining approval from the president of the federation in any case, which goes against the principle of clarity, which is the contents of the principle of no punishment without law. The substantial contents of the elements of punishment are not directly prescribed in the law and delegated to the internal regulations of the National Assembly Federation without prescribing the contents of punishment in the law, goes against the principle of no punishment without law.

Therefore, in this case where the part of the elements of the penal provision applicable to the facts charged by the claimant is asked whether it is in violation of the Constitution, that is, the part of the penal provision applicable to the facts charged by the claimant, that is, where the loan is executed beyond the limit of loan without obtaining the approval of the president of the National Assembly of Korean Federation, a supervisory agency," and in detail, the legal provision of this case and the enforcement decree of this case are subject to concurrent trials.

(3) In light of the facts charged against the claimant and the facts charged in the judgment of Daejeon District Court Decision 2000Kadan4066, which is the judgment of the first instance court of the relevant case, it is doubtful that the scope of loans to 300 million won is set at a specific amount, unlike the provisions of the Enforcement Decree of this case, and only the provisions of the law of this case are specified in the law and application of the law of this case. As such, there is room to regard the enforcement decree of this case as not a penal provision applied to the facts charged by the claimant. Since the constitutional complaint under Article 68 (2) of the Constitutional Court Act has its essence in the norm control of the law (Article 68 (2) of the Constitutional Court Act), it is questionable whether

First of all, we examine whether the Enforcement Decree of this case is applicable to the facts charged by the claimant.

According to the facts charged against the claimant and the facts recorded in the above judgment, unlike the provisions of the Enforcement Decree of this case, which set the limit of loans at a specific amount, based on the reserve funds, there may be room to view the provision of the guidelines for approving the limit of loans to community credit cooperatives (hereinafter “loan Guidelines”) which set the limit of loans at a specific amount as applicable to the facts charged by the claimant.

However, even if the enforcement decree provision of this case does not directly delegate the lending limit to community credit cooperatives, the articles of association or the loan guidelines to determine the specific amount of the lending limit, Article 1 of the loan guidelines clearly states that the purpose of the loan lending limit is to determine the matters to be approved by the federation, and accordingly Article 2(6) of the loan guidelines.

In light of the fact that the limit of loans is embodied in the fixed amount based on the assets of each credit cooperative, it can be seen that such loan guidelines have a kind of business guidance which has binding force only within the credit cooperative by embodying the limit of loans provided by the Enforcement Decree of this case at least, even though whether such loan guidelines follow legitimate delegation under the Enforcement Decree of this case.

In addition, where the contents are embodied in the order of the Enforcement Decree, the articles of incorporation, and the loan guidelines, as stated in the legal provisions of this case and the Enforcement Decree provisions of this case, only the legal provisions of this case shall be stated in the convenience of entry of the applicable provisions of this Act, and it shall be a practical practice. Since the legal provisions of this case are stated in the applicable provisions of this case, it shall not be deemed that the Enforcement Decree provisions of this case shall not be the penal provisions applied to the facts of crime of the claimant.

Therefore, without considering the nature of the loan guidelines at all, the provision of the Enforcement Decree of this case cannot be deemed as not a penal provision applied to the facts charged or the facts charged by the claimant.

Furthermore, even if the prosecutor's office or court prosecuted the petitioner as the applicable provisions of the domestic law or sentenced the petitioner guilty of the application of the loan guidelines, in the case of dispute over the unconstitutionality of the penal provisions applied to the criminal facts of the claimant, such erroneous application of the law should not be judged, but rather, it should be judged whether it is unconstitutional or not by examining the legitimate application of the law and making it the object of the trial.In the case in question, in principle, the issue of the application of the law should be respected with the opinion under the jurisdiction of the court, but if the application of the law is not clearly maintained, the Constitutional Court can ex officio review it and revise

Then, it is examined whether the target of the judicial review of the enforcement decree exceeds the limit of the right to review the law.

In the constitutional complaint under Article 68 (2) of the Constitutional Court Act, only the Enforcement Decree (Article 68 (2)) is the object of the adjudication, because there is a problem related to Article 107 (2) of the Constitution that provides the Supreme Court's right to review the constitutionality of the order

The matter is whether or not the enforcement decree provision is subject to a trial shall be delegated to determine the specific contents in the enforcement decree provision, and on the basis of this, the contents prescribed in the enforcement decree provision shall be excluded from the limitation of delegation or shall be in detail.

In such a case, the constitutionality of Article 68(1) of the Enforcement Decree shall be deemed to be the case where the constitutionality of the Act is unconstitutional (Article 68(2) of the Constitutional Court Act). Thus, the Constitutional Court's constitutional complaint against Article 68(1) of the Enforcement Decree Article 68(1) of the Constitutional Court Act shall not be requested as to Article 68(2) of the Enforcement Decree of the Constitutional Court Act, even if the Constitutional Court's constitutional complaint against Article 68(1) of the Constitutional Court Act is separately filed.

However, the enforcement decree of this case does not stipulate the matters to be approved by the supervisory agency by delegation of the legal provision of this case, but it is determined that excess loans exceeding the limit of loan are separately approved by the supervisory agency according to delegation of Article 26 (3) of the Act. Thus, the enforcement decree of this case set the new approval items independently from the enforcement decree. This is ultimately a combination of the legal provision of this case and the legal provision of this case, which are parallelly combined, to punish the enforcement of excess loans exceeding the limit of loan that is not approved by the president of the National Federation. Thus, it should be subject to direct control within such scope.

This conclusion is likewise the same in light of the reasoning of the Majority Opinion. In relation to the legislative method of the legal provision of this case, with regard to the legislative method of the provision of this case, the legislative method is only a difference in the legislative technology, and the penal provision of this case, which is a penalty provision of this case, is an ordinary example to specify the relevant legal provision meeting the constituent elements of crime in the penal provision. However, with regard to the legal provision of this case, the common part of the constituent elements, such as the provision of this case, shall be extracted and comprehensively defined, and the separate provisions of other Acts and subordinate statutes with regard to the specific constituent elements shall be clearly permitted as long as it does not violate the principle of clarity of the principle of no punishment without law because it is too comprehensive or broad. Thus, both legislative methods are the same

Therefore, as long as there is no dispute over the statutory penalty when there is a petition for unconstitutionality that the penal provision is unclear in the ordinary legislative method or that the penal provision is contrary to the principle of no punishment without the law, the individual provision that sets the elements of a crime naturally becomes subject to adjudication, and in the latter case, the individual provision that sets the specific elements of a crime should be subject to adjudication.

In the event that a single constituent element is divided into a legal provision and a Enforcement Decree provision, the determination of such two constituent elements shall be made in full, and only a part of the provision shall be considered to have been properly determined.

In accordance with the nature of the case, such determination cannot be said to exceed the scope of the Constitutional Court's right to examine the constitutionality of the provision in question, and thus, it cannot be deemed to exceed the scope of the Constitutional Court's right to examine the constitutionality of the provision in question.

B. Issues of the Majority Opinion concerning the disposition and reasons

The majority opinion, while limiting the object of the trial in this case to the legal provisions of this case, draw up the conclusion that applying the legal provisions of this case to the approved matters that are not specified as the matters that should be approved directly by the supervisory authorities in this case is unconstitutional, on the ground that, in the conclusion part of the reasoning, "at least, even if it is possible to delegate the specific matters related to the affairs of the community credit cooperatives or the National Federation of Community Credit Cooperatives in accordance with the necessity of delegation legislation to subordinate statutes, according to the necessity of delegation legislation, at least if it is clearly stated that the delegated matters are approved and delegated, it can be included in the scope of "approval" under the provisions of this case, which are the penal provisions, which are the penal provisions. In addition, in light of the legal provisions of this case and the provisions of the Enforcement Decree of this case, the conclusion of its reasoning is unconstitutional.

Of course, it is not necessary to say that the cause of such inevitable cause is about the wrong establishment of the object to be tried, but it is not simple that it is about the contradiction of the reason composition as mentioned above.

For that reason, the majority opinion excludes approved matters that are not directly approved by the law in the area of interpretation and application of the legal provisions of this case, and if it is directly stated in the law that certain matters are subject to punishment pursuant to the legal provisions of this case, it is constitutional to punish the legal provisions of this case, and otherwise, if it is not explicitly stated in the law that it is approved, it is unconstitutional to punish the legal provisions of this case pursuant to the legal provisions of this case.

However, even if the law explicitly states that approval matters are matters to be approved, if the contents of the specific approval matters, which are the substance of the prohibition, are merely revealing the fact that it is matters to be approved, and are comprehensively delegated to the subordinate laws and regulations, or have been determined directly, and if the contents of the approval are unconstitutional on the contents of the approval matters subject to punishment under the provisions of this case, such as where there is no punishment to the extent that they are subject to punishment under the provisions of this case, or where there is no punishment to the extent that the contents of the approval are subject to punishment under the provisions of this case.

It can not be said that criminal punishment is naturally permitted.

In addition, even if the law does not expressly stipulate that approval matters are matters, in full view of the legal provisions of this case, the provisions that stipulate the contents of approval matters, and other relevant legal provisions that delegate the contents of approval matters to the enforcement decree, etc., if it is possible to know that such approval matters are matters subject to punishment under the legal provisions of this case, it cannot be readily concluded that they constitute matters subject to punishment under the legal provisions of this case, on the ground that they constitute matters subject to punishment under the legal provisions of this case.

Therefore, the conclusion of the majority opinion is inconsistent with the conclusion of the majority opinion, and the order of the majority opinion that "it is in violation of the Constitution, as long as it applies the legal provisions of this case to the approval prescribed by the Enforcement Decree provision of this case," which is derived from the recognition of excess loans as provided by the Enforcement Decree provision of this case, is inconsistent with the conclusion of the majority opinion without any need for further review.

C. Conclusion

For this reason, since the subject and text of the trial as determined by the Majority Opinion do not have any meaningful answer with respect to the instant request for a trial, it is deemed that the following should be decided as unconstitutional:

Article 26(3) of the Enforcement Decree of the instant case provides that “The limit of loans, the limit of loans, the operation of surplus funds, and other necessary matters related to credit business under Article 26(1)6 of the Act shall be prescribed by the Presidential Decree,” and Article 26(3) of the Enforcement Decree of the instant case provides that “The limit of loans, the limit of loans, and the scope of funds related to credit business under Article 26(1)1 of the Act shall be determined by the Presidential Decree, and other necessary matters related to credit business of community credit cooperatives shall be determined by the Presidential Decree,” and it does not mean that “the limit of loans, the limit of loans, and other necessary matters related to credit business of community credit cooperatives shall be determined by the Presidential Decree, for instance, that excess loans exceed the limit of loans are approved by the President.” It is difficult to conclude that this case’s legal provision or related provisions violate the principle of no punishment without delegation, and thus independently stipulate the elements of a crime against the Constitution, or that this case’s legal provision violates the principle of no punishment without law or related provisions.

Since a limited decision of unconstitutionality can be removed by excluding the use, it is reasonable to make a decision of unconstitutionality to that extent, since the provision of this case can eliminate the unconstitutionality by excluding the application of the approved matters among the approved matters under the Enforcement Decree of this case.

If so, the text of the instant case:

Article 66 (2) 1 of the Community Credit Cooperatives Act (amended by Act No. 5462 of Dec. 17, 1997 and amended by Act No. 6493 of Jul. 24, 2001) stipulates that the part concerning "approval" shall be punished in cases where the approval of the president of a federation is not obtained under Article 23 of the Enforcement Decree of the Community Credit Cooperatives Act (amended by Presidential Decree No. 15684 of Feb. 24, 1998).

2. The phrase “approval of the president of the Federation” under Article 23 of the Enforcement Decree of the Community Credit Cooperatives Act is in violation of the Constitution to the extent that it is included in the “approval of the supervisory agency” under Article 66(2)1

Since it is reasonable to say that it is reasonable to do so, it is a separate opinion from the disposition of the majority opinion and the reasons for the same reason.

6. Dissenting Opinion by Justice Han-dae, Kim Jong-soo, and Kim Yong-soo

We oppose the Majority for the following reasons.

A. As to the subject of the trial

The majority opinion argues that the part of "approval" under Article 66 (2) 1 of the Act (hereinafter "approval") is subject to this case's trial. However, the above provision only provides that "when approval is not obtained from a supervisory agency," and does not provide for the substance of the prohibition, so it has a legislative form that does not have to be invoked from several provisions under the Act and the Enforcement Decree of the Act. The approval under the above provision of the Act has the legislative form that does not include the contents of specific elements. In addition to the approval of the federation with regard to the limit of loan under Article 23 of the Enforcement Decree of the above Act, the approval of the federation under Article 34 (2), the approval of the president of the federation under Articles 48 (7) and 8 (11), and the approval of the competent Minister under Article 56 (1) of the above Act. Among these various approved matters, the premise for judgment is applicable to the restriction of loan of the above Chapter, and therefore it should be separated.

It is not only faithful to the application principle of general application to judicial action, but also the legal provision which is the premise of the trial in the case at issue.

In addition, if the legal provision can be clearly separated, it shall be divided as far as possible and limited to the specific applicable part which is the actual premise of the judgment among the relevant legal provision (see, e.g., Supreme Court Decision 3, 149HunMa160, Apr. 1, 1991; Supreme Court Decision 3, 149, 151; Constitutional Court Decision 89HunGa97, May 13, 1991; Supreme Court Decision 3, 202, 207; Constitutional Court Decision 6, 6, 7, Supreme Court Decision 4, 585, 592; Constitutional Court Decision 4, 585, 592; Constitutional Court Decision 96HunBa86, Mar. 27, 1997; Supreme Court Decision 91, 325, 328).

On the contrary, as the majority opinion states, if the subject of the judgment is in itself a legal provision of this case, it is necessary to examine the constitutionality of all the constituent elements of this case which are scheduled under the above legal provision. However, it is clear that the examination of the constitutionality of the constituent elements of this case, which is irrelevant to the pertinent case, is unnecessary, and as to the remainder of the application except for the violation of the approval on the lending limit, it is difficult to understand that the subject of the judgment is subject to any constitutional examination, and it is difficult to understand it as the subject of the judgment, and it is difficult to determine whether the judgment is suspended or it is premised on constitutionality.

In addition, it may be doubtful whether our opinion is not to judge the unconstitutionality of the interpretation and application of a law, but our opinion merely appears as a result of considering the nature of the legal provision of this case as mentioned above and the specific circumstances as to what is the premise of a trial, and our opinion is that the specific and individual facts of this case constitute a violation of Article 23 of the Enforcement Decree and thus, it is not clear that the legitimacy of applying the legal provision of this case is applicable to the legal provision of this case.

Therefore, we determine that the legal provision of this case is reasonable when applying the "approval of the president of a federation on the limit of loan under Article 23 of the Enforcement Decree of the Act" to the legal provision of this case.

B. Regarding the reasons

(1) The legal provision of this case only provides that "when approval is not obtained in the case of matters subject to approval by the supervisory agency" shall be sentenced to imprisonment for not more than three years or to a fine not exceeding five million won. The above supervisory agency or approval shall be subject to generalized law.

There is no room to regard the term itself as an abstract or ambiguous concept, and the language of the legal provision of this case alone does not lead to the conclusion that the approval of the legal provision of this case is limited to the matters specified in the law itself as the majority opinion. Rather, pursuant to Article 26 (3) of the Act which falls under the delegation provision of this case, "the limit of loans and other necessary matters shall be prescribed by Presidential Decree." In addition, as the provision of Article 39 (1) of the Enforcement Decree of the Act separately provides for the limit of loans to the same person of the Federation, it is unnecessary to separately provide for the approval of the legal provision of this case as the limit of loans, and the approval of the legal provision of this case cannot be deemed to be all approved matters, so the approval of the legal provision of this case shall include the matters approved under the law and the matters approved under the Enforcement Decree according to the delegation of the law as long as it does not go against the principle of prohibition of comprehensive delegation.

(ii)The delegation of a penalty law shall be justified only if it is inevitable to delegate it to the extent that it has been specifically determined to the extent that the act subject to punishment is expected to be certain under the law, and it shall be determined by the Presidential Decree. In light of the delegation provision of this case which provides that "the above, the legislative intent of the delegation provision of this case shall be determined by the Presidential Decree" shall be clearly expressed that there is a certain limit to the lending of community credit cooperatives upon the request of the public interest to restrict the lending of excessive amounts to one and the same person under the arbitrary judgment of the executive officers and employees in order to ensure the stable rights of a large number of depositors, provided that it is clear that the delegation of the penalty law has a certain limit to the lending of community credit cooperatives, taking into account the need to respond appropriately in various ways due to the complex and diverse changes in the financial market, and other necessary matters to efficiently implement the prohibition of excess loans, it shall be deemed that the delegation of this provision of this case to the extent specifically set the lending limit and to substantially restrict the excess limit is a legitimate administrative legislation.

(iii)Such circumstances are more apparent if the entire relevant provisions of the law other than that of Article 26, paragraph 3, of the Act are systematically and systematically examined. In other words, the law provides for the State's duty of cooperation to community credit cooperatives (Article 3) and at the same time it limits certain actions at many places (Articles 26 to 28) and the Federation, reflecting the public interest nature of community credit cooperatives;

The authority to comprehensively guide and supervise community credit cooperatives (Article 61) and Article 66(2)6 of the Act explicitly punishs “where a person violates an order issued pursuant to the provisions of Article 26(3) of the Act” to the head of the community credit cooperatives, the act of lending in excess of the lending limit prescribed by the Enforcement Decree pursuant to the delegation of Article 26(3) of the Act is prescribed as a constituent element of a crime. Therefore, it is difficult to deem that the legal provision of this case and the “violation of the approval of the president of the federation” having the substance of “excess of the lending limit” as a constituent element of a crime, thereby creating a crime which is not intended under the mother law.

(4) Furthermore, Article 26 (3) of the Enforcement Decree of the instant case limits a receiver to “an officer, employee, or liquidator of a cooperative or federation,” not a citizen, and such receiver is a person who is directly in charge of the business of a community credit cooperative or who has considerable knowledge of the business and who is closely related to the business. Therefore, considering the limitation of the receiver and the characteristics of limited convicts, it cannot be concluded that Article 26 (3) of the Act did not specify that excess loans are approved by the head of the federation, solely on the ground that there is only one circumstance that the Enforcement Decree of the instant case did not specify that excess loans are approved by the head of the federation.

(5) For more than anything else, we agree with Article 26(3) of the Act specifically define the subject of administrative legislation, “the limit of loans and other necessary matters,” and delegate this to the Presidential Decree, and Article 26(3) of the Enforcement Decree of the Act provides that loans to the same person of the credit cooperative shall not exceed 10/100 of the total amount of the investment and reserve funds of the credit cooperative, except in the case where the president of the federation approves, and thus, it constitutes a violation of the provisions of the Act, which constitutes a constituent element of a crime under the provisions of the Act, of this case, since it falls within the scope of delegation anticipated and intended by the Community Credit Cooperatives Act as the mother corporation, and ultimately, it is in accordance with the ideology of the principle of no punishment without law, therefore, it shall be determined that the approval of the provisions of the Act of this case does not violate the Constitution.

Judges

Justices Yoon Young-chul (Presiding Justice)

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