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The prosecutor's appeal is dismissed.
Reasons
1. The summary of the grounds for appeal did not extend the due date of the loan as of May 6, 2008 under the agreement dated November 28, 2008, but the interest rate increased from “3.47% of the CD Distribution Return” to “5.52% of the CD Distribution Return.” As such, the agreement on November 28, 2008 was different from the substitution for which the due date is simply extended, and accordingly, the obligation to be borne by the victim was also increased.
Therefore, since the victim's joint and several surety act under the above agreement of November 28, 2008 cannot be deemed as not a new act of disposal, the court below erred by misunderstanding the facts, or by misapprehending the legal principles on the act of disposal in fraud.
2. Determination:
A. According to the records, the credit transaction agreement between D (hereinafter “D”) and the new bank (hereinafter “new bank”) on May 6, 2008 is concluded between D and the new bank on May 6, 2008, with each of the credit transaction agreements on the terms of general loans, the credit limit is KRW 896 million, the expiration date of the credit limit is November 4, 2008, and the interest rate is at a floating rate (3.47%) (3.47% of the CD distribution yield). Around that time, the victim made an all-inclusive credit guarantee (limit 1.08 billion won) for D; D and the victim entered into a credit transaction agreement with the new bank on May 4, 2009; and the applicable interest rate is modified to 5.2% of the CD distribution rate.
B. According to the above facts, the above agreement of November 28, 2008 was not a new loan agreement, but merely a so-called "large exchange" which changed the credit expiration date and interest rate of the credit transaction agreement of May 6, 2008, and thus, barring any special circumstance, the defendant acquired property benefits due to the above agreement of November 28, 2008 in relation to the victim as a joint guarantor.
The victim cannot be deemed to have conducted an additional disposal of property (see, e.g., Supreme Court Decision 2005Do1018, Apr. 15, 2005).