Whether export financing in charge of a financial institution constitutes an export support measure by the Minister of Trade, Industry and Energy under Article 16 and Article 33 subparagraph 1 of the Trade Act (negative)

Export subsidies granted by the defendant for production and collection of raw materials for export from a bank are loans by so-called export financing, and such export financing business is not subject to export financing measures taken by the financial institution pursuant to the export financing regulations established by the Monetary Policy Committee, which are those in charge of the financial institution pursuant to subparagraph 1 of Article 3 and Article 16 of the Trade Business Act.

Article 16 and Article 33 subparag. 1 of the Trading Business Act

Defendant

Prosecutor

Busan District Court Decision 82No1956 delivered on November 9, 1982

The appeal is dismissed.

1. The court below found the defendant not guilty on the ground that there is no evidence to prove that the defendant used a fraudulent method in relation to the facts charged that he received export subsidies by borrowing KRW 100,000,000 from the Busan branch of the Hanil Bank from the Busan branch in order to appropriate for the non-indicted Jin's debt, etc., but it erred in the misapprehension of legal principles as to "the person who received export subsidies by fraud or improper means" under Article 33 subparagraph 1 and Article 16 of the Trade Act, or in the violation of the rules of evidence.

2. However, according to Article 33 subparagraph 1 of the Trade Business Act, a person who received export support under Article 16 through fraud or other unlawful acts shall be punished by imprisonment for not more than three years or by a fine not exceeding five million won. Article 16 of the same Act provides that the Minister of Trade, Industry and Energy may take measures on export support under the conditions as prescribed by the Presidential Decree, since Article 33 subparagraph 1 of the same Act provides that the Minister of Trade, Industry and Energy may take measures on export support under the conditions as prescribed by the Presidential Decree, the term "export support under Article 16" under Article 3 subparagraph 1 of the same Act refers to an export support measure under the conditions as prescribed by the Presidential Decree by the Minister of Trade, Industry and Energy. However, according to records, it is evident that the export support which the defendant received by fraudulent means in this case is a loan through the so-called export support from the Busan branch of the Korea Bank for production of raw Materials for Export, and such export financing business constitutes an export support measure under Articles 33 subparagraph 1 and 16 of the Trade Act.

Therefore, the facts charged in this case on the premise that the defendant's criminal conduct falls under subparagraph 1 of Article 33 and Article 16 of the Trade Act shall not be regarded as a crime. The reasons for the judgment of the court below are different, and the decision of the court below is justified and the decision of not guilty is not justified.

3. Therefore, the appeal is dismissed. It is so decided as per Disposition by the assent of all participating judges.

Justices Lee Lee Sung-soo (Presiding Justice)