[1] Whether Article 37 (1) 3 of the Mutual Savings Banks Act and Article 30 (2) 8 of the Enforcement Decree of the Mutual Savings Banks Act violate the prohibition of comprehensive delegation legislation or the clarity principle (negative)

[2] Whether "a corporation, an executive officer of a major shareholder or a mutual savings bank, who is deemed to have de facto control over its management," under Article 30 (2) 8 of the Enforcement Decree of the Mutual Savings Banks Act, includes a corporation that controls its management through a mutual savings bank by mediating control over the mutual savings bank (affirmative)

[3] Whether the "enterprise in which the large shareholder group of mutual savings banks is the largest shareholder" under the former part of Article 12 subparagraph 2 of the Enforcement Decree of the Regulation on Supervision of Business of Mutual Savings Banks includes the pertinent mutual savings bank

[4] Whether the same legal principle applies to the amount of property damage suffered by the mortgagee and the security right other than the right to collateral security where the right to collateral security is extinguished due to a tort (affirmative)

[5] In a case where the Defendant, a manager of the mutual savings bank Gap, was indicted of interfering with the duty of the dispatched supervisor’s regular supervision without notifying the supervisor of the Financial Supervisory Service who was dispatched to the savings bank Gap while the business suspension is imminent and after the business closure, by notifying a specific large-scale large-scale deposit account holder of the scheduled business suspension and allowing him to withdraw his deposits, the case affirming the judgment below that the Defendant’s act constitutes

[6] The relationship between the violation of the Financial Investment Services and Capital Markets Act due to fraudulent illegal transactions using the financial statements prepared and published by falsity and the violation of the Act on External Audit of Stock Companies due to the preparation and publication of false financial statements

[1] The purpose of Article 37(1) of the Mutual Savings Banks Act (hereinafter “Act”) is to prevent insolvency of a mutual savings bank due to unfair loans to large shareholders, executives, or persons in a special relationship with a mutual savings bank, as well as to protect creditors of a mutual savings bank, such as deposit holders, etc. In light of the above legislative purpose, overall contents, structure, etc., a person who has a special relationship under the Enforcement Decree of the Mutual Savings Banks Act (hereinafter “Enforcement Decree”) can be sufficiently predicted to be a person with a risk of not properly examining the credit of a mutual savings bank because he/she is under the substantial control of a large shareholder, etc., and further, Article 30(2)8 of the Enforcement Decree of the Mutual Savings Banks Act provides that “a corporation in which a large shareholder or an executive officer of a mutual savings bank is deemed to have de facto control over its management,” and thus, a person who has a special relationship under the Enforcement Decree of the Mutual Savings Banks Act (hereinafter “Enforcement Decree”) can not be deemed to violate the principle of clarity in the penal code or the principle of no punishment without law.

[2] In light of the legislative intent of Article 37(1) of the Mutual Savings Banks Act to prevent insolvency of a mutual savings bank due to illegal loans to a major shareholder, an officer, or a person in a special relationship with a major shareholder, an officer, or a mutual savings bank, the phrase “a corporation in which a major shareholder or an officer of a mutual savings bank is deemed to have de facto control over its management” under Article 30(2)8 of the Enforcement Decree of the Mutual Savings Banks Act includes not only the corporation in which a major shareholder, etc. acquires shares directly and controls its management, but also the corporation in which a major shareholder

[3] Article 12 of the Enforcement Rule of the Mutual Savings Banks Act (hereinafter “Enforcement Rule”) provides that “A corporation, etc., the Governor of the Financial Supervisory Service of which meets the criteria set forth in Article 30(2)8 of the Enforcement Decree of the Mutual Savings Banks Act (hereinafter “Enforcement Rule”), refers to a company falling under any of the following subparagraphs.” Article 37(1)3 of the Mutual Savings Banks Act provides that an officer or a group of large shareholders of a mutual savings bank refers to an enterprise which is the largest shareholder and an enterprise group under its control. Article 37(1)3 of the Mutual Savings Banks Act delegates to the Enforcement Decree the scope of a person who is specially related to a large shareholder, etc. who is prohibited from extending credit to a mutual savings bank. Article 30(2)8 of the Enforcement Rule delegates some of them to the Enforcement Rule. In light of the system of the above provision or the nature of credit extension, a group of large shareholders of a mutual savings bank under the former part of Article 12 subparag. 2 of the Enforcement Rule, which is a major shareholder, should not be construed as a group of the largest shareholder:

[4] In the event that a person’s tort was extinguished, the mortgagee would lose the right to receive repayment due to the extinguishment of the right, notwithstanding the fact that the mortgagee would have received reimbursement of the secured debt if he had not extinguished the right to do so. Therefore, the damage that the mortgagee would incur due to the extinguishment of the right to collateral shall be the amount of the secured debt within the scope of the maximum debt amount within the scope of the value of the real estate which is the object of the right to collateral. This legal principle applies likewise to other security rights than the right to collateral.

[5] In a case where Gap savings bank management officer of Gap savings bank was prosecuted for interfering with the business of the dispatched supervisor's regular supervision by notifying a specific large amount of deposit account holders of the scheduled suspension of business after the closure of business without notifying the Governor of the Financial Supervisory Service who was dispatched to Gap savings bank under the circumstances where Gap savings bank's business suspension was imminent, the case affirming the judgment below which held that the defendant's act of allowing deposit account holders to withdraw their deposits using the site of the dispatched supervisor's notification of the scheduled suspension of business constitutes the crime of interference with business

[6] The crime of violation of the Financial Investment Services and Capital Markets Act due to fraudulent illegal transactions using financial statements prepared and published is entirely different from the crime of violation of the Act on External Audit of Stock Companies due to the preparation and disclosure of false financial statements, and the content of the constituent act or the legal interest and protection of the law. Thus, such crime is not deemed in a commercial concurrent relationship, or it cannot be deemed that the former constitutes an act after the latter.

[1] Article 75 of the Constitution, Article 1 (1) of the Criminal Act, Articles 37 (1) and 39 (2) 3 of the Mutual Savings Banks Act, Article 30 (2) 8 of the Enforcement Decree of the Mutual Savings Banks Act, Article 12 of the Regulations on the Performance of Supervision of Mutual Savings Banks / [2] Article 37 (1) of the Mutual Savings Banks Act, Article 37 (2) 8 of the Enforcement Decree of the Mutual Savings Banks Act / [3] Article 37 (1) 3 of the Mutual Savings Banks Act, Article 30 (2) 8 of the Enforcement Decree of the Mutual Savings Banks Act, Article 30 (2) 2 of the Mutual Savings Banks Act, Article 12 subparagraph 2 of the Regulations on the Performance of Supervision of Mutual Savings Banks / [4] Article 355 (2) and 356 of the Criminal Act, Article 750 of the Civil Act / [5] Article 37 of the Criminal Act, Article 178 (1) 2 of the Financial Investment Services and Capital Markets Act / [3] Article 4 (1) 2) 1 of the Act

[1] Supreme Court Decision 2008Do3357 Decided July 10, 2008 / [4] Supreme Court Decision 97Da35771 Decided November 25, 1997 (Gong1998Sang, 14), Supreme Court Decision 2008Da18284, 18291 Decided July 29, 2010

Defendant 1 and 16 others

Defendants and Prosecutor

Attorney Lee Dong-bok et al. and 19 others

Supreme Court Decision 2009Do14464 Decided October 27, 2011

Seoul High Court Decision 2012No832, 1240 decided August 17, 2012

The part of the lower judgment against Defendant 1, 2, 3, 4, 5, 6, 8, 9, 11, 12, 13, and 14 in its entirety is reversed, and that part of the case is remanded to the Seoul High Court. All of the appeals against Defendant 7, 10, 15, 16, and 17 and the Prosecutor’s appeals against Defendant 10, 16, and 17 are dismissed.

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. As to the violation of the Mutual Savings Banks Act due to credit extension to a special purpose corporation (SPC), the management of which is controlled by a major shareholder, to a special purpose corporation (SPC)

A. As to the assertion such as violation of the prohibition of blanket delegation

(1) Article 75 of the Constitution provides the basis and scope of delegated legislation, and the scope and limitation thereof. “Matters delegated with the scope of an Act” refers to the fact that any person, as the basic matters of the contents and scope that are already prescribed by Presidential Decree in the Act, should be able to predict the outline of the contents that shall be prescribed by Presidential Decree from the relevant Act. In addition, the existence of the existence of the specification, clarity, or predictability of delegation shall not be determined with only one of the relevant specific provisions, but shall be determined through an organic and systematic comprehensive review of the relevant legal provisions, and specific and individual review shall be conducted in accordance with the nature of the delegated matters (see, e.g., Constitutional Court en banc Decision 2004Hun-Ga19, Apr. 27, 2006). Re-election without the provision of delegated matters in the Act is allowed against the legal principle of the prohibition of delegation. However, where the delegated matters are determined by the Act and delegated to the Acts and subordinate statutes within a certain scope (see, e.g., Constitutional Court en banc Order 2001Hun-Ma84, Jan.

(2) Article 37 (1) of the Mutual Savings Banks Act (hereinafter referred to as the “Act”) provides that “No mutual savings bank shall extend credit or make a provisional payment to any of the following persons (hereinafter referred to as “large shareholders, etc.”), and no large shareholder, etc. shall receive credit extension or deposit from a mutual savings bank, or receive provisional payment.” Under each subparagraph, “1. Large shareholder (including any shareholder prescribed by Presidential Decree), 2.3. An officer or employee of a mutual savings bank, a person falling under subparagraphs 1 and 2, or a person who is in a special relationship with a mutual savings bank, or a relative prescribed by Presidential Decree.” Article 39 (2) 3 of the Act provides that a person who violates Article 37 (1) of the Act shall be punished. Article 30 (2) of the Enforcement Decree of the Mutual Savings Banks Act (hereinafter referred to as the “Enforcement Decree”), and Article 30 (2) of the former Enforcement Decree of the Mutual Savings Banks Act provides that an officer of the Financial Services Commission or a person who is in a special relationship with a major shareholder shall be delegated to the Governor or a specific person under subparagraph 1 through 7 of the Act:

The purpose of Article 37(1) of the Act is to prevent insolvency of a mutual savings bank due to unfair loans to a person in a special relationship with a major shareholder, an officer, or a mutual savings bank, and to protect creditors of a mutual savings bank, such as deposit holders (see Supreme Court Decision 2008Do3357, Jul. 10, 2008). In light of the above legislative purpose, the whole content, structure, etc., a person who has a special relationship as determined by Presidential Decree as being understood and determined by Presidential Decree as an ordinary person with the capacity to distinguish things can be sufficiently predicted as a person with a risk of not properly conducting credit examination of a mutual savings bank under the substantial control of the major shareholder, etc. Furthermore, Article 30(2)8 of the Enforcement Decree of the Act provides that "a corporation, the executive of a major shareholder or a mutual savings bank of which is deemed to have de facto control over its management," and thus, the detailed scope of the regulations should not be deemed to violate the principle of clarity under Article 37(1)3 of the Act or the principle of penal law.

The judgment below to the same purport is just, and contrary to Defendant 7’s grounds of appeal, there were no errors in the misapprehension of legal principles as to the prohibition of comprehensive delegation legislation.

B. As to the assertion that it does not constitute credit extension

Article 2 Subparag. 6 of the Act provides that "credit extension" means payment, loan, payment guarantee, purchase of securities in the nature of financial support, and other direct and indirect transactions of a mutual savings bank which involve credit risk in financial transactions, as prescribed by Presidential Decree. In such cases, credit extension on the principal's account, regardless of in whose name it is named, shall be deemed credit extension on the principal's account."

The lower court determined that each of the instant SPC loans granted by Nonindicted 1 Savings Bank (hereinafter “Nonindicted 1 Savings Bank” and Nonindicted 2 Savings Bank, Nonindicted 3 Savings Bank, Nonindicted 4 Savings Bank (hereinafter “Nonindicted 4 Savings Bank”) and Nonindicted 5 Savings Bank (hereinafter “affiliated Bank”) for the purpose of directly running real estate enforcement business through each of the instant SPC, even if the foregoing loans were made by Nonindicted 1 Savings Bank for the purpose of directly running real estate enforcement business through the instant PC, the lower court determined that the aforementioned loans also constitute “credit extension” prohibited under Article 37(1) of the Act. In so doing, the lower court did not err by misapprehending the legal doctrine as to the meaning of credit extension, contrary to what is alleged in the grounds of appeal by Defendant 2 and 7.

C. As to the assertion on the subject who controls the management of the SPC

In light of the legislative purport, etc. of Article 37(1) of the Act to prevent insolvency of a mutual savings bank due to unfair loans to large shareholders, executives, or persons in a special relationship with a mutual savings bank, “a corporation in which a large shareholder or an executive officer of a mutual savings bank is deemed to have de facto control over its management” under Article 30(2)8 of the Enforcement Decree shall be construed as including not only a corporation in which a large shareholder, etc. acquires shares directly and controls its management, but also a corporation in which a large shareholder, etc. has control over its management through

In full view of the adopted evidence, the lower court acknowledged the fact that Nonindicted 1 Savings Bank held at least 30% of the shares of each of the instant SPC in the name of its executives and employees, etc., and Defendant 2, the president of the ○ Savings Bank Group, as the largest shareholder of Nonindicted 1 Savings Bank, was authorized to form shareholders or executive officers of each of the instant SPC, and was able to determine some of the loans as the time when they were returned as financial advisory fees, amount, conditions, etc., and was used for personal purposes. The lower court determined that each of the instant SPC constituted a corporation de facto controlling management by Defendant 1 or 2, etc., who is the major shareholder or executive officer of Nonindicted 1 Savings Bank.

Examining the reasoning of the judgment below in light of the above legal principles and records, we affirm the above determination by the court below as just. Contrary to the allegations in the grounds of appeal by Defendant 2, 4, 5, and 8, there were no errors in the misapprehension of legal principles as to the management subject of each of the instant SPC, or in violation of the principle of free evaluation of evidence

D. As to the assertion on the interpretation of Article 12 subparagraph 2 of the Enforcement Rule

(1) The interpretation of penal provisions must be strict, and the interpretation of penal provisions in the direction unfavorable to the defendant is not permitted as it is against the principle of no punishment without the law (see, e.g., Supreme Court Decision 2011Do7725, Aug. 25, 201).

Article 12 of the Enforcement Rule provides that "a corporation which meets the criteria determined by the Governor of the Financial Supervisory Service with approval from the Financial Services Commission" under Article 30 (2) 8 of the Enforcement Decree refers to a corporation falling under any of the following subparagraphs, and Article 12 subparagraph 2 provides that "an executive officer or group of large shareholders of a mutual savings bank refers to an enterprise which is the largest shareholder and an enterprise group under its control." As seen earlier, Article 37 (1) 3 of the Act delegates the scope of a person who is in a special relationship with a large shareholder, etc. to the Enforcement Decree, as a subject of prohibition of credit extension by a mutual savings bank, and Article 30 (2) 8 of the Enforcement Decree delegates some of them to the Enforcement Rule. In light of the system of the above provision and the nature of credit extension, it should not be interpreted that "a large shareholder group of large shareholders of a mutual savings bank" under the former part of Article 12 subparagraph 2 of the Enforcement Rule does not include any unfair credit extension to the relevant mutual savings bank:

(2) (A) The court below held that the non-indicted 1 savings bank constitutes an enterprise under the former part of Article 12 subparagraph 2 of the Enforcement Rule on the ground that the major shareholder group of a mutual savings bank does not explicitly exclude the relevant mutual savings bank from the "enterprise which is the largest shareholder of the mutual savings bank" under the former part of Article 12 subparagraph 2 of the Enforcement Rule on the ground that each of the instant SPC constitutes an enterprise under the latter part of Article 12 subparagraph 2 of the Enforcement Rule on the ground that it constitutes the "enterprise controlled enterprise group of the company (non-indicted 1 Savings Bank)" of Article 12 subparagraph 2 of the Enforcement Rule, and held that each of the instant SPC constitutes a credit extension prohibited pursuant to Article 37 (1) of the Act. In light of the above legal principles, the court below erred by misapprehending the legal principles on the interpretation

(B) However, Article 12 subparag. 1 of the Enforcement Rule separately from Article 12 subparag. 2 of the Enforcement Rule prohibits a company belonging to a major shareholder group, and Article 13 of the Enforcement Rule prohibits a company from extending credit to "the major shareholder group under Article 12". Article 13 of the Enforcement Rule provides that "the major shareholder group under Article 12 refers to a person who falls under any of the following subparagraphs." Article 15 of the Enforcement Rule provides that "the person who actually exercises the right of management of a mutual savings bank, his related persons, and their controlling groups." Article 15 of the Enforcement Rule provides that "a company which actually exercises the right of management of a mutual savings bank" is one of the controlling groups under Article 12 subparag. 5 of the Enforcement Rule that "the same person and subparagraphs 1 through 4 is deemed to be participating in the management such as appointment and dismissal of officers and exchange of executives." According to the facts duly recognized by the court below after considering the adopted evidence, each of the instant SPC belongs to a business group controlled by Defendant 1 through a savings bank.

In addition, Article 30 (2) 5 of the Enforcement Decree provides that "any corporation that holds at least 30 percent of the total number of shares issued by a mutual savings bank (limited to voting shares; hereafter the same shall apply in this paragraph) or the total amount of investment in which a person who owns or has contributed at least 30 percent of the total number of shares issued by or has contributed at least 30 percent of the total number of shares issued by or total amount of investment in a mutual savings bank, and any corporation that holds or has contributed at least 30 percent of the total number of shares issued by or total amount of investment in a mutual savings bank" as one of the persons related to a special relationship under Article 37 (1) 3 of the Act. Under the facts duly admitted by the court below, it can be known that the savings bank of non-indicted 1 holds at least 30 percent of the total number of shares issued by a mutual savings bank, and therefore, each of the instant SPC constitutes subject to prohibition of credit extension pursuant to Article 30 (2) 5 of the Enforcement Decree.

Therefore, the lower court’s determination that loans to each SPC of Nonindicted Savings Bank 1 and affiliated banks of this case constitute prohibited subject to credit extension is justifiable. Therefore, this part of the grounds of appeal by Defendant 2, 4, 5, 7, and 8 is without merit.

E. As to Defendant 5, 7, and 8’s assertion that there is no public contestal relationship

In relation to co-offenders who are jointly engaged in a crime, a public offering does not require any legal punishment, but is only a combination of two or more persons to jointly process a crime and realize the crime. Even if there was no process of the whole conspiracy, if there was a combination of intent to do so in order or impliedly, among several persons, then a public offering relationship is established. Even if there was no direct participation in the conduct of the crime, even if there was no direct participation in the conduct of the crime, even if there was a person who did not directly participate in the conduct of the crime, criminal liability as a co-principal with regard to the act of another co-principal is imposed, and such public offering may be recognized by circumstantial facts and empirical rules without direct evidence (see Supreme Court Decision 2004Do5494, Dec. 24, 200

The lower court determined that Defendant 5’s public offering relation can be recognized for the loans executed by non-indicted 3 savings banks other than the above dispatch period, taking into account the following circumstances: (a) Defendant 5 was well aware of the control status and structure of loans to each of the instant SPC while working as the executive director of the Savings Bank and as the credit examiner; (b) from April 2006 to December 206, when dispatched to Non-indicted 3 Savings Bank, Non-indicted 1 Savings Bank concurrently served as the chairman of the Savings Bank’s office; and (c) Defendant 8 did not directly engage in each of the instant loans to the employees of Non-indicted 1 Savings Bank; and (d) Defendant 1 did not directly engage in the instant financial transactions with the non-indicted 1 Savings Bank; and (e) Defendant 8 did not directly engage in the instant financial transactions with the non-indicted 1 Savings Bank; and (e) Defendant 1 did not directly engage in each of the instant financial transactions with the non-indicted 1 Savings Bank; and (e) Defendant 8 did not directly engage in the instant business.

Examining the reasoning of the judgment below in light of the aforementioned legal principles and records, the above judgment of the court below is just and acceptable, and contrary to the allegations in the grounds of appeal by the defendant 5, 7, and 8, there were no errors in the misapprehension of legal principles as to joint principal offenders, or in violation of the principle

F. As to the Prosecutor’s ground of appeal on Defendant 10, 11, 12, and 13

The lower court upheld the first instance court that acquitted the Defendants of this part of the charges, on the ground that there was no evidence to prove that each of the instant SPC was aware of the fact that the Defendants 10, 11, 12, and 13 was under the control of Nonindicted Bank 1 Savings Bank, in the course of examining the loan documents for each of the instant SPC, or that some of the SPC was under the control of Nonindicted Bank 1 Savings Bank, even if there was no evidence to prove that each of the instant SPC was under the control of Nonindicted Bank 1 Savings Bank.

Examining the reasoning of the judgment below in comparison with records, the above judgment of the court below is just, and contrary to the prosecutor's grounds of appeal, there is no violation of law of free evaluation of evidence against logical and empirical rules.

2. As to the violation of the Act on External Audit of Stock Companies

A. As to Defendant 8 and 11’s grounds of appeal

Article 16 of the Criminal Act provides that "the act of misunderstanding that one's act does not constitute a crime under Acts and subordinate statutes shall not be punishable only when there is a justifiable reason to believe that the misunderstanding does not constitute a crime" means a simple legal ground, not a case where it generally becomes a crime, but it is generally accepted that it does not constitute a crime due to a mistake that it is permitted by Acts and subordinate statutes in his special circumstances, and if there is a justifiable reason to mislead misunderstanding (see Supreme Court Decision 2000Do3051, Sept. 29, 200, etc.).

In full view of the adopted evidence, the court below maintained the judgment of the court of first instance that: (a) the representative director of the savings bank of non-indicted 3 or the auditor, or the defendant 8, and 11 reported the result of the provisional settlement of accounts to the non-indicted 3 savings bank; (b) reported the result of the settlement of accounts to the non-indicted 1 savings bank; and (c) returned the money received from the non-indicted 1 savings bank in the name of the financial advisory fee from the SPC that the non-indicted 1 received the financial advisory fee for the purpose of improving the BS ratio; and (d) the defendant 8 and 11 fully aware that the above financial advisory fee sent by the non-indicted 1 savings bank was an interest related to the real estate implementation business, which is not yet realized, and thus, it is an accounting problem that the awareness of the fact that the above financial advisory fee is not yet realized, and therefore, it constitutes legal mistake.

Examining the reasoning of the judgment below in light of the above legal principles and the records, the above judgment of the court below is just and acceptable, and contrary to the allegations in the grounds of appeal by the defendant 8 and 11, there are no errors in the misapprehension of legal principles as to

B. As to the grounds of appeal by Defendant 10, 12, and 13

The court below determined that Defendant 10, 12, and 13 worked for a long time in the Financial Supervisory Service and had sufficient accounting knowledge, and that the settlement of accounts for the disclosure of financial statements is the most important and basic business affairs that are entrusted to the auditor of the company. The above Defendants were well aware of the purpose and structure of receiving the financial advisory fee of this case where they were employed for the settlement of accounts, and that the purpose and structure of receiving the financial advisory fee of this case where they were concentratedly in the settlement of accounts, and that the amount of the settlement of accounts for the window dressing of this case was large to KRW 00 million, the court below determined that the above Defendants had intent to prepare and disclose false financial statements and that there was a conspiracy with the representative director of each savings bank of this case.

Examining the reasoning of the judgment below in light of the records, the above judgment of the court below is just and acceptable, and there is no violation of law by exceeding the principle of free evaluation of evidence against logical and empirical rules, contrary to the allegations in the grounds of appeal by the defendant 10, 12

C. As to the Prosecutor’s Grounds of Appeal

The court below affirmed the first instance judgment that acquitted Defendant 1, etc. on the ground that Defendant 1, etc. did not know that the asset soundness classification of the loan claims against each of the instant SPC was false, considering the following circumstances: (a) as at the time of the instant case, the classification of the asset soundness of the loan claims in the savings bank and affiliated banks was carried out mechanically in accordance with the method of using a computer program; (b) there was no room for involvement in the classification of the asset soundness of the loan claims against the instant SPC in the settlement of accounts in the savings bank in the first savings bank; and (c) there was no discussion about the establishment of the principle or standard for the asset soundness classification of the loan claims against the instant SPC in the settlement of accounts in the non-indicted 1 savings bank; and (d) it did not know that Defendant 1, etc. did not know that the asset soundness classification of the above loan claims was false.

Examining the reasoning of the judgment below in comparison with records, the above judgment of the court below is just and acceptable, and contrary to the prosecutor's grounds of appeal, there were no errors in the misapprehension of legal principles regarding legal errors, or in violation of the principle of free evaluation of evidence

3. As to each violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Misappropriation) with respect to the lending of PF loans

A. As to Defendant 2’s ground of appeal on the violation of the Act on Special Economic Crimes (Misappropriation) due to the termination of security related to the Filidong Development Project

(1) As to the assertion regarding the intent of occupational breach of trust and occupational breach of trust

In the crime of occupational breach of trust, an intentional act of breach of trust shall be recognized only where it is recognized that the person who administers another’s business causes property damage to the principal and that such damage or loss is in breach of one’s own duty. In order to determine whether a manager had an intent to acquire property and an intent to obtain illegal gains in connection with a management judgment, the intentional act of breach of trust shall not be held solely on the ground that the person was liable for the failure to obtain or neglect his/her duty (see, e.g., Supreme Court Decisions 207Do6075, Nov. 15, 2007; 207Do6075, Nov. 15, 2007). However, an act of breach of trust, as a matter of course, ought to be determined on the grounds that the person himself/herself or a third party did not have any intent to obtain property benefits and that it does not have any intent to obtain or incur any loss to the principal, such as an act of breach of trust and good faith (see, e.g., Supreme Court Decision 2007Do7207).

In full view of the adopted evidence, the court below acknowledged the following facts: (a) Nonindicted 1 Savings Bank established or acquired several SPCs, including Nonindicted 7 Stock Companies, in order to carry out the Filidong Development Project together with Nonindicted 6; (b) obtained a certificate of beneficial interest under a real estate collateral trust agreement on the project site acquired by Nonindicted 7 Stock Companies, etc. as a collateral; (c) as a result of limitation on the loan limit to the same person, it was no longer possible to lend funds to ○○ Savings Bank Group; and (d) Defendant 2, etc. did not take measures such as sufficiently examining the project prospects or the possibility of recovery of loan claims in order to enable Nonindicted 7 Stock Companies, etc. to provide the above project site as a collateral and obtain a loan from another financial institution; and (c) concluded that the above act by Defendant 2, etc., as an executive or employee of a mutual savings bank, constitutes an act of breach of trust or an act of breach of trust, which is naturally expected to be in accordance with the statutory provisions, the content of the contract, or the principle of trust and good faith.

Examining the reasoning of the judgment below in light of the above legal principles and records, the above judgment of the court below is just and acceptable. Contrary to Defendant 2’s grounds of appeal, there were no errors in the misapprehension of legal principles as to intentional act or occupational breach of trust, or in violation of the principle of free evaluation of evidence against logical

(2) As to the assertion on property damages

In a case where a right to collateral security is extinguished due to a tort committed by another person, the mortgagee would lose the ability to obtain repayment due to the extinguishment of the right to collateral security, notwithstanding the fact that the mortgagee would have received repayment of the secured obligation by the exercise of the right to collateral security, so the damage incurred by the extinguishment of the right to collateral security shall be deemed as the secured debt amount within the scope of the maximum debt amount within the value of the real estate which is the object of collateral security (see Supreme Court Decision 97Da35771 delivered on November 25, 1997, etc.). Such legal principles likewise apply to other security rights than the right to collateral security.

The lower court acknowledged that Defendant 2 et al.’s act of breach of duty caused property damage equivalent to the balance of the loan claims against Nonindicted 1 Savings Bank and affiliated banks at the time of the termination of each security.

However, it is difficult to accept the judgment of the court below for the following reasons. This part of the act of breach of duty is not a defective loan without securing sufficient collateral, but it causes property damage to the non-indicted 1 Savings Bank and affiliated banks by cancelling the existing collateral without securing a substitute security. Therefore, in light of the above legal principles, its property damage amount shall be deemed to be the balance of loan up to the limit of the value of the collateral. However, according to the records, the amount of revenue on the certificate of beneficial interest secured by the ○ Savings Bank Group with respect to the loans to the non-indicted 7 corporation is the aggregate of KRW 70.62 billion, and the balance at the time of the termination of the collateral is the aggregate of KRW 62 billion, while the appraised value of the collateral at the time of the above termination of the collateral is the sum of KRW 46.29 billion, and the situation where the appraised value of the collateral does not reach the balance at the time of the termination of the collateral is the same for other S corporation including the non-indicted 8, etc., and the court below erred in finding the above legal principles as to recognize the amount of property damage by each judgment below.

B. As to the grounds of appeal by Defendant 1, 2, and 5 on the violation of the Act on the Special Cases Concerning the Loans by Nonindicted Co. 4 to Nonindicted Co. 9

The summary of this part of the facts charged is that Defendant 1, 2, and 5 conspired with Defendant 4, 12, and loaned KRW 8 billion to Nonindicted Co. 9 without taking adequate measures for securing collateral on December 30, 2008, thereby incurring property damage to Nonindicted Co. 4.

The lower court reversed the first instance judgment convicting the Defendant of this part of the facts charged on the ground that, in light of the fact that the existing loans of the ○ Savings Bank Group’s ○○○ Savings Bank’s ○○○ Group’s 32.6 billion won in total, and that the financial status of Nonindicted Company 9 significantly deteriorated, the value of the beneficial rights certificate secured as security cannot be deemed sufficient for the above loans to be sufficient.

However, such determination by the lower court is difficult to accept for the following reasons. According to the evidence that was not rejected by the lower court, the collateral security column for Nonindicted Bank 4’s loan treatment proposal was written in the column for “the issuance of a certificate of beneficial rights (the amount of certificate 10.4 billion won) with respect to the remaining and ten parcels of land outside Busan-gu (hereinafter omitted).” Furthermore, the collateral column for the extended loan period as of January 12, 2010 among the written opinion of the lower court, stated that “the site for the pertinent business as the sole beneficiary in relation to the land for the present business was the business approved on October 205. Considering that the appraisal corporation’s business was either KRW 1.2 billion, or KRW 1.2 billion, which was prepared on March 18, 2008, the lower court did not sufficiently support the existing financial statements of Nonindicted Bank 4 as well as that it did not have any risk of property damage to the above land and the above real value of the loan.” Furthermore, the lower court did not deem the aforementioned financial statements of the said Nonindicted Company 9.

Nevertheless, the lower court’s conviction of this part of the facts charged solely based on its stated reasoning is erroneous in the misapprehension of legal doctrine as to occupational breach of trust and exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules. Defendant 1, 2, and 5’s ground of appeal assigning this error is with merit.

C. As to Defendant 6’s ground of appeal

If a person in charge of financial institutions extended a loan without taking reasonable and reasonable measures in order to secure the recovery of loan claims, it cannot be deemed that there was no awareness that a third party has obtained property benefits and incurred damage to financial institutions by business fraud (see Supreme Court Decision 2003Do7878, Mar. 26, 2004, etc.).

In full view of the adopted evidence, the lower court recognized that Defendant 6, the managing director of Nonindicted 2 Savings Bank, did not go through a measure of securing alternative security or a practical credit examination, and only, upon the request of Nonindicted 1 Savings Bank Management, including Defendant 2, etc., terminated a security related to the filial dynamic development project and carried out a loan related to the Dokdong Commercial Building Project, etc., and determined that such act constitutes a violation of a financial institution’s executive officer’s duty and constitutes an intentional occupational breach of trust by Defendant 6.

Examining the reasoning of the judgment below in light of the above legal principles and records, the above judgment of the court below is just and acceptable, and contrary to the allegations in the grounds of appeal by the defendant 6, there were no errors in the misapprehension of legal principles as to the intention of occupational breach of trust, or in violation

D. As to Defendant 8 and 11’s grounds of appeal on the amount of property damage

In relation to each part of the loans, the argument that since the Korea Deposit Insurance Corporation currently is proceeding with the collection of loans, the total amount of the loans shall not be deemed as property damage, or the part of the loans received as part of financial advisory fees, etc. or the amount equivalent to the value of a security subsequently secured in relation to gallon loans shall be excluded from the calculation of damages, all of the arguments that Defendant 8 and 11 do not claim as grounds for appeal in the appellate court, and thus, they cannot be legitimate grounds for appeal.

Furthermore, in the crime of occupational breach of trust, “when any property damage is incurred” includes not only a case where a real loss is incurred but also a case where a risk of actual damage is caused, and once the risk of damage is caused, it does not affect the establishment of occupational breach of trust even if a security has been acquired or the damage has been recovered (see Supreme Court Decision 2005Do5996, Oct. 28, 2005, etc.). In the event that the crime of occupational breach of trust is established by an improper loan, it shall not be deemed that only the amount borrowed in excess of the value of the security or the amount actually impossible to recover is not deemed as the amount of damage, but it shall be deemed that the total amount of the loan with the risk of damage is deemed as the amount of damage (see Supreme Court Decision 200Do28, Mar. 24, 200). Therefore, this part of the grounds for appeal by the Defendant 8 and 11 cannot be seen as a mother or acceptable.

E. As to Defendant 11, 12, and 13’s grounds of appeal that did not participate in the crime

In full view of the adopted evidence, the lower court determined that Defendant 11, 12, and 13 participated in Defendant 2, etc.’s breach of trust by approving the loan by granting approval on the loan-related documents without any objection, without knowing that each part of the loans implemented by such savings banks at the request of Nonindicted Savings Banks 3, Nonindicted Savings Banks 4, and Nonindicted Savings Banks 5 violated the loan regulations and did not take all measures to recover claims.

Examining the reasoning of the judgment below in comparison with records, the above judgment of the court below is just and acceptable, and contrary to the allegations in the grounds of appeal by Defendant 11, 12, and 13, there were no errors in the misapprehension of the legal principles as to joint principal offenders of occupational breach of trust, or in violation of the principle of free evaluation

F. As to the Prosecutor’s Grounds of Appeal

(1) As to the ground of appeal against Defendant 10

The lower court determined that Defendant 10 cannot be deemed to have participated in the crime of this part, taking into account the circumstances in light of the following: (a) there was no evidence to deem that Defendant 10 was involved in the establishment of security for the filial dynamic development project of Nonindicted 2 Savings Bank; or (b) there was no evidence to deem that Defendant 10 was involved in the establishment of documents related to each of Cambodia’s business loans

Examining the reasoning of the judgment below in comparison with records, the above judgment of the court below is just, and contrary to the prosecutor's grounds of appeal, there is no violation of law of free evaluation of evidence against logical and empirical rules.

(2) As to the ground of appeal against Defendant 16 and 17

In order to recognize a beneficiary who benefits from the commission of the crime of occupational breach of trust or a third party closely related thereto as a co-principal with the perpetrator of the crime of occupational breach of trust, it is insufficient to have acquired profits by passive acceptance of the act of breach of trust with the awareness that the act of the perpetrator constitutes the act of breach of trust against the victim himself. It is necessary to actively participate in the act of breach of trust by inducing the perpetrator to commit the act of breach of trust or participating in the whole process of the act of breach of trust (see Supreme Court Decision 9Do1911, Jul. 23, 199, etc.).

The court below found Defendant 16 and 17 not guilty on the ground that Defendant 16 and 17 cannot be deemed as having actively participated in the act of violating this part of the ○ Savings Bank’s business, taking into account the following circumstances: (a) it is difficult to see that each of the instant Cambodia project was originally planned to have failed; (b) Defendant 16 and 17 had expertise and career in relation to each of the instant projects and prepared a specific project plan to a certain extent; (c) Defendant 16 and 17 did not actively induce the management of Nonindicted Savings Bank’s 1, including Defendant 2, etc. to participate in the business; and (d) Defendant 2 actively proposed the participation in some of the projects; and (c) Defendant 16 and 17 could not be deemed as having actively participated in the internal decision making process of Nonindicted Savings Bank 1, 16, and 17 with respect to loans, and there was no material to make an illegal solicitation or offer money or valuables.

Examining the reasoning of the judgment below in light of the above legal principles and records, the above judgment of the court below is just and acceptable, and there are no errors in the misapprehension of legal principles as to joint principal offense of occupational breach of trust, or in violation of the principle of free evaluation of evidence

4. As to interference with business of the dispatched supervisor of the Financial Supervisory Service and occupational breach of trust in connection with the withdrawal of deposits

A. As to Defendant 5’s ground of appeal on obstruction of business

The crime of interference with business under Article 314(1) of the Criminal Act is established in cases where a person interferes with the business of another by deceptive means or by force. The term "defensive means" in this context means causing mistake, mistake, or site to the other party in order to achieve the purpose of the act by the actor (see Supreme Court Decision 2003Do504, Mar. 25, 2005, etc.).

In full view of the adopted evidence, the court below acknowledged the fact that Defendant 5 did not notify the Governor of the Financial Supervisory Service of the dispatch supervisor of the third floor office of the savings bank in the situation where the business suspension of Nonindicted 1 Savings Bank was imminent, and notified a specific large amount of deposit account holders of the scheduled business suspension by telephone after the closure of the business, and caused them to visit Nonindicted 1 Savings Bank and withdraw the deposit. The court below determined that Defendant 5’s act of ordering the above deposit account holders to withdraw the deposit using the site of the dispatched supervisor of the notification of the scheduled business suspension constituted a deceptive scheme in the crime of interference with business.

Examining the reasoning of the judgment below in light of the above legal principles and records, the above judgment of the court below is just and acceptable, and contrary to the allegations in the grounds of appeal by Defendant 5, there were no errors in the misapprehension of legal principles as to deceptive scheme in the crime

B. As to Defendant 2, 5, and 9’s ground of appeal on occupational breach of trust

(1) The court below held that the officer or employee of a mutual savings bank was in violation of the duty as an officer or employee of a mutual savings bank, on the premise that the officer or employee of the mutual savings bank was on business duty that could not process the deposit payment business in an unfair manner by giving preferential treatment to only specific deposit account holders and allowing them to withdraw the deposit, etc. In the event that the suspension of business of the non-indicted 2, 5, and 9 was imminent in the situation where the suspension of business of the non-indicted 1 savings bank and non-indicted 4 savings bank was imminent.

Examining the reasoning of the judgment below in light of the aforementioned legal principles and records, we agree with the above determination by the court below as just, and contrary to the allegations in the grounds of appeal by the defendant 5 and 9, there were no errors in the misapprehension of legal principles as to occupational breach of trust, or in violation of the principle of free evaluation of evidence against

(2) In the crime of occupational breach of trust, where property damage is inflicted on the principal’s property status, i.e., where an act of breach of trust causing property loss at the same time causes property loss, i.e., where an act of breach of trust which causes property loss at the same time causes property loss, for instance, where there is no other property loss (actual loss or damage to property), corresponding to benefits and consideration arising from such act of breach of trust, i.e., loss of total property value, i., loss of property (see, e., Supreme Court Decision 2009Do14268, Apr. 28, 201). However, even if there exists a quid pro quo relationship between such benefits, it is merely deemed that it is merely used for the purpose of raising funds, etc. to a person who substantially controls the company in light of various circumstances, such as the purpose or content of the transaction, the scale of the transaction, and the financial situation of the principal, or where there are special circumstances, such as specific liquidity that causes property loss and management.

The lower court found Defendant 2, 5, and 9 guilty of this part of the charges on this part, on the ground that Defendant 2, 5, and 9 suffered property loss, such as aggravation of liquidity, by notifying only to Nonindicted Savings Bank 1 and specific account holders of Nonindicted Savings Bank 4 at the imminent stage of business suspension and allowing them to withdraw their deposits, and causing them to reduce their assets of each Savings Bank, thereby causing property loss, such as aggravation of liquidity, etc., and that the said specific account holders obtained property profit, unlike other customers, prior to the business suspension.

Examining the reasoning of the judgment below in light of the above legal principles and records, the above judgment of the court below is just and acceptable, and contrary to the allegations in the grounds of appeal by the defendant 2, 5, and 9, there are no errors in the misapprehension of legal principles as to property damage in

5. As to the violation of the Financial Investment Services and Capital Markets Act

The crime of violation of the Financial Investment Services and Capital Markets Act due to fraudulent illegal transactions using the financial statements prepared and published by falsity is entirely different from the contents of the constituent act or legal interests protected by the Act on External Audit of Stock Companies due to the preparation and publication of false financial statements. Therefore, these crimes are in a mutually competitive relationship, or they cannot be deemed as an act after the former.

Defendant 6’s ground of appeal asserted on a different premise is without merit.

6. As to Defendant 14’s violation of the Special Economic Act (Embezzlement)

In full view of the adopted evidence, the lower court recognized the following facts: (a) Defendant 14 withdrawn the total amount of Nonindicted 2 Savings Bank’s funds kept in his wife’s account; and (b) partially out of them used for personal purposes, such as delivering them to his relatives by affinity; and (c) Defendant 14 made a statement at an investigative agency to withdraw the aforementioned funds and deliver it to Defendant 6; and (d) reversed the subsequent statement, the lower court determined that Defendant 14 could sufficiently recognize Defendant 14’s intent to obtain unlawful acquisition of the said funds.

Examining the reasoning of the judgment below in light of the records, the above judgment of the court below is just and acceptable, and contrary to the allegations in the grounds of appeal by Defendant 14, there is no violation of law of free evaluation of evidence against logical and empirical rules.

7. As to the violation of the special law regarding the issuance of subordinated bonds (Fraud)

A. As to Defendant 8 and 11’s grounds of appeal

The court below found Defendant 8 and 11 guilty of this part of the facts charged on the ground that, after preparing and disclosing the false financial statements of Nonindicted 3 Savings Bank, Defendant 8 and 11 had recruited investors of subordinated bonds issued by Nonindicted 3 Savings Bank, there was dolusence in deceiving the victims by using the false financial statements at least, and that there was a false business index containing such major contents as BISD ratio (equity Capital Ratio) and net profit, etc. with the false financial statements, by disclosing them on the website of Nonindicted 3 Savings Bank or by allowing them to explain them to the victims through its employees.

Examining the reasoning of the judgment below in comparison with the records, the above judgment of the court below is just and acceptable, and contrary to the allegations in the grounds of appeal by the defendant 8 and 11, there were no errors in the misapprehension of legal principles as to the intentional deception in fraud, or in violation of the principle of free evaluation of evidence

B. Ex officio determination

In the case of fraud, in the case of deception by deception against several victims, each of the property is acquired by each victim, and even if the criminal intent is a single and the method of crime is the same, it shall be deemed that there is not a single crime but a single crime by each victim (see Supreme Court Decision 97Do508, Jun. 27, 1997, etc.).

Defendant 8 and 11, by deceiving 40 million won of victims by the above method, purchased subordinated bonds of KRW 7.7 billion, thereby allowing the victim non-indicted 3 savings bank to gain property profits equivalent to the same amount, the court below held that only one fraud was established, and held that Article 3 (1) 1 of the Special Economic Crimes Act was established. However, in light of the above legal principles, since each fraudulent act against victims cannot be deemed as a single crime, it cannot be deemed that each act constitutes a single crime. In addition, according to the facts duly established by the court below, the property profits of each victim's fraud is not less than five billion won as provided by Article 3 (1) 1 of the Special Economic Crimes Act, and the part against the victim non-indicted 10 billion in property profits falls under Article 3 (1) 2 of the Special Economic Crimes Act, and all of the remaining victims are less than 500 million in property profits, and therefore, the court below erred in the misapprehension of legal principles as to fraud ratio under Article 13 (1) 1 of the Special Economic Crimes Act.

8. As to Defendant 16 and 17’s violation of the Special Economic Act (Embezzlement)

If the representative director of a company withdraws or uses large amount of company funds for any purpose other than expenditure for the company, it does not go through legitimate procedures such as a resolution of the board of directors, etc., beyond the generally acceptable scope, and thereby arbitrarily disposes of company funds for private purposes by using the status of the representative director (see, e.g., Supreme Court Decision 2003Do135, Apr. 27, 2006).

In full view of the adopted evidence, the lower court determined that Defendant 16 and 17, who operated Nonindicted Co. 11 (hereinafter “Nonindicted Co. 11”), who held 50% of the issued and outstanding shares, decided to transfer 60% of the issued and outstanding shares of Nonindicted Co. 11 to the side of the Savings Bank in the course of jointly promoting Nonindicted Co. 1 Savings Bank and Cambodia’s new airport construction project, and upon recommendation of one representative director and one director, operated Nonindicted Co. 11 as a joint representative director system in both sides, and completed the amendment of the articles of incorporation to the effect that all of the decisions made by Nonindicted Co. 11 were agreed to be made by all the members of the board of directors and the general meeting of shareholders; thereafter, Defendant 16 and 17 did not arbitrarily withdraw the total amount of KRW 422,500,000 from Nonindicted Co. 11 under the pretext of officer’s reward money, etc., and that the act of Defendant 16 and the board of directors did not have any disguised intent to pay the above funds for the purpose of embezzlement.

Examining the reasoning of the judgment below in light of the above legal principles and the records, the above judgment of the court below is just and acceptable, and contrary to the allegations in the grounds of appeal by the defendant 16, 17, there were no errors in the misapprehension of the legal principles as to the intention of unlawful acquisition in the crime of occupational embezzlement, or in violation

9. As to Defendant 17’s violation of the Special Economic Act (Fraud)

The court below affirmed the judgment of the court of first instance, after Defendant 17 entered into a service contract with Nonindicted 12 foreign corporations, etc. in relation to the Cambodia's Highway and Special Economic Zone development project, found Defendant 17 not guilty of this part of the charges by deceiving Nonindicted 13 in the sum of KRW 4,494,693,843, as if Defendant 17 were to use the total amount of service costs to be paid even if Nonindicted 12 foreign corporations, etc. did not intend to use the service costs for each of the above projects in relation to each of the above projects, as if they were to use the service costs for each of the above projects, as if they were to use the service costs for each of the above projects, the court below found Defendant 17 guilty of the charges, taking into account all the circumstances, including the fact that Defendant 17 did not intend to receive the service costs for each of the above projects at the time of the conclusion of the above service contract, but did not intend to receive the service costs each month in accordance with the specific use plan or disbursement details.

Examining the reasoning of the judgment below in comparison with records, it is just and acceptable, and contrary to the prosecutor's grounds of appeal, there is no violation of the principle of free evaluation of evidence against logical and empirical rules.

10. As to the violation of the Act on the Special Cases concerning the Golf Course Construction Business (Misappropriation)

The lower court determined that Defendant 1 et al. violated his duties as an officer or an employee of the Savings Bank by using the savings bank’s money for the purpose of running a golf course construction business on its own without undergoing an objective and adequate business feasibility review, and by disregarding the loan regulations and procedures, Defendant 1 et al.’s success or failure to secure loan claims against an individual who has no ability to repay, and managing a new loan without any proper business plan, and continuously implementing an additional loan as a result of bad credit management, thereby violating his duties, and thereby, caused property damage to which the collection of the amount equivalent to each of the loans by Nonindicted Savings Bank 1’s own account bank was extremely inappropriate.

In light of the above legal principles and records, the above determination by the court below is just and acceptable, and contrary to Defendant 1’s grounds of appeal, there were no errors of exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules, or failing to exhaust all necessary deliberations.

11. As to the remaining grounds of appeal

A. As to Defendant 1’s ground of appeal

The court below maintained the first instance court which held that Defendant 1 had a co-principal relationship with Defendant 2, etc. in relation to each of the crimes of this case, comprehensively taking into account the following circumstances: (a) the decision-making on major issues within the ○ Savings Bank Group was made at the meeting of executives of Nonindicted 1 Savings Bank; (b) Defendant 1 attended the meeting of the board of directors held daily as the largest shareholder of Nonindicted 1 Savings Bank and the president of the ○○ Savings Bank Group; and (c) Defendant 2 led Defendant 2 to make a decision on the loan, etc.; (d) although it was impossible without Defendant 1’s comprehensive and final approval, it was impossible for Defendant 1 to do so without Defendant 1’s comprehensive and final approval.

In light of the above legal principles and records, the above determination by the court below is just and acceptable, and contrary to the allegations in the grounds of appeal by Defendant 1, there were no errors in the misapprehension of legal principles as to joint principal offenders, or in violation of the principle of free evaluation of evidence

B. As to Defendant 6’s ground of appeal

The lower court maintained the first instance court, which determined that Defendant 6 constituted a co-principal who conspiredd with Defendant 2, etc. to commit each of the instant crimes together with Defendant 2, in full view of the following circumstances: (a) at the time of each of the instant loans by Nonindicted 2 Savings Bank, Defendant 6 was working as a managing director and as a credit review committee; and (b) all of the documents related to the loan was approved; (c) even during the loan process, the credit review committee held a false document as if he did not have undergone a credit review on business feasibility, possibility of collecting loans, etc.; and (d) made a false document as if he

Examining the reasoning of the judgment below in comparison with records, the above judgment of the court below is just and acceptable, and contrary to the allegations in the grounds of appeal by Defendant 6, there were no errors in the misapprehension of legal principles as to co-principal.

C. As to Defendant 14’s ground of appeal

There is no obstacle to the establishment of joint principal offenders as long as they were jointly processed in the crime even among persons with a mutually-known relationship (see Supreme Court Decision 94Do1793 delivered on June 16, 1995).

Examining the evidence duly adopted by the lower court and the first instance court in light of the aforementioned legal principles, the lower court’s determination that Defendant 14 was a joint principal offender who shared with Defendant 2 and 3 in collusion with regard to each of the instant crimes, such as taking charge of PF lending practice while working as a business director of the savings bank and a credit examiner, and approving the loan-related documents, is justifiable. In so doing, contrary to what is alleged in the grounds of appeal by Defendant 14, there were no errors by misapprehending the legal doctrine regarding joint principal offenders, or by exceeding the bounds

D. As to Defendant 15’s ground of appeal

According to the records, Defendant 15 appealed against the judgment of the court of first instance and asserted only unfair sentencing as the grounds for appeal. In such a case, the allegation that the judgment of the court below erred by misapprehending the legal principles cannot be a legitimate ground for appeal.

12. Scope of reversal

For the foregoing reason, the guilty portion of the judgment of the court below is reversed. ① Violation of the Act on Special Cases Concerning the Cancellation of Security in connection with Filidong Development Project with Defendant 2 (Misappropriation), ② Violation of the Act on Special Cases Concerning Loans to Nonindicted Co. 9 by the Bank of Korea against Defendant 1, 2, and 5 (Misappropriation) and ③ Violation of the Act on Special Cases Concerning the Issuance of Subordinate Claims against Defendant 8, and 11 (Fraud). As to the aforementioned part ①, there are common grounds for reversal against Defendant 1, 3, 4, 5, 5, 6, 8, 9, 12, 13, 14, and 2, each of the above parts should also be reversed against the above co-defendant pursuant to Article 392 of the Criminal Procedure Act.

In addition, the above reversal part on Defendant 1, 2, 3, 4, 5, 6, 8, 9, 11, 12, 13, and 14 and the remaining parts which the court below found guilty on the above Defendants are concurrent crimes under the former part of Article 37 of the Criminal Act, and thus, all of them should be reversed. Meanwhile, since the part which the court below acquitted the above Defendants is related to the reversed guilty part and the crime of ordinary concurrence or universal concurrence, all of these parts should be reversed.

13. Conclusion

Therefore, without further proceeding to decide on the assertion of unfair sentencing by Defendant 1, 2, 3, 12, 13, and 14, the part of the judgment below against Defendant 1, 2, 3, 4, 5, 6, 8, 9, 11, 12, 13, and 14 among the judgment below is reversed, and the case is remanded to the court below for further proceedings consistent with this Opinion. Defendant 7, 10, 15, 16, and 17 and the prosecutor’s appeal against Defendant 10, 16, and 17 are dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Min Il-young (Presiding Justice)