[1] The meaning of "person related to insolvency who is deemed responsible for insolvency or insolvency" who shall comply with an investigation under Article 21-2 (7) of the Depositor Protection Act and the requirements therefor

[2] The scope of the right to investigate persons related to insolvency of the Korea Deposit Insurance Corporation under Article 21-2 (7) of the Depositor Protection Act

[3] The case holding that the debtor merely fails to perform his obligations to the insolvent financial institution does not have a duty to respond to the request for investigation by the Korea Deposit Insurance Corporation on the ground that it cannot be deemed that the financial institution

[1] Article 21-2 (1) of the Depositor Protection Act provides that persons related to insolvency who shall comply with an investigation pursuant to Article 21-2 (7) of the same Act shall be limited to persons related to insolvency who are deemed responsible for insolvency or insolvency. Therefore, in the interpretation of the Act, there may be questions as to whether an insolvent financial institution is responsible for insolvency or where an insolvent financial institution is held responsible for insolvency or where another liability is recognized for the insolvency itself. However, in order to interpret the above legal provision constitutionally, even if an insolvent financial institution fails to perform its obligations, it cannot be deemed that the insolvent financial institution itself is responsible for insolvency, and only persons related to insolvency who are deemed responsible for the insolvency shall be deemed to fall under the persons related to insolvency who are deemed responsible for the investigation. In addition, in order to be recognized as responsible for insolvency of the insolvent financial institution, the above legal provision shall be deemed to be a case where

[2] It is not allowed to investigate a criminal act with the authority of investigation recognized by the Korea Deposit Insurance Corporation pursuant to Article 21-2(7) of the Depositor Protection Act, and only the authority to investigate the debtor's property or business-related matters so that the debtor can smoothly recover public funds through a claim for damages on the ground of such tort (i.e., in order to ensure the effectiveness of compulsory execution against the debtor).

[3] The case holding that the debtor merely fails to perform his obligations to the insolvent financial institution does not have a duty to respond to the request for investigation by the Korea Deposit Insurance Corporation on the ground that it cannot be deemed that the financial institution was responsible

[1] Article 21-2 (1) and (7) of the Depositor Protection Act / [2] Article 21-2 (7) of the Depositor Protection Act / [3] Article 21-2 (7) and Article 41 subparagraph 2 of the Depositor Protection Act

Defendant

Governing land

Attorney Choi Jae-ho

The defendant is innocent.

1. Summary of the facts charged

The defendant is the representative director of the non-indicted 1 corporation, and the non-indicted 1 corporation is a person related to insolvency who is in progress with the approval of the composition from the Daegu District Court around November 1998 when it was unable to repay the debt amount of KRW 840,000,000 to Daegu Comprehensive Finance, which is an insolvent financial institution, and is in progress with the approval of the composition from the Daegu District Court. The debtor who has failed to perform his/her obligation to an insolvent financial institution should not refuse, interfere with, or evade an investigation into the business, property status, etc.

A. On April 10, 206, the office of Non-Indicted 1 Co., Ltd. located in Daegu-gu (detailed number omitted), the office of Non-Indicted 1 Co., Ltd. was investigated by the Non-Indicted 1 Co., Ltd., and was requested by the Investigation Committee of Non-Indicted 1 Co., Ltd. to submit materials necessary for the investigation from investigators on the total account ledger, the head of the board of directors, the head of assistance by account, the former list, the merger documents with the related company, the representative director’

B. On the 18th day of the same month, the said Nonindicted Co. 1’s office rejected the investigation of the Korea Deposit Insurance Corporation by refusing the attendance of the investigator of the Korea Deposit Insurance Corporation as the office of the Korea Deposit Insurance Corporation in connection with the investigation of insolvent debt companies.

2. Determination:

A. The meaning of "persons related to insolvency who are deemed responsible for insolvency"

The applicable provisions of the facts charged in this case are Article 41 subparagraph 2 of the Depositor Protection Act and Article 21-2 (7) of the same Act, and Article 21-2 (7) of the same Act provides that "the Corporation may, when it is necessary to demand compensation for damages, exercise in subrogation of the right to claim compensation for damages or participate in a lawsuit under Article 21-2 (1) through (4) of the same Act, request the relevant insolvent financial institution, etc., persons related to insolvency or any of the following interested persons to submit data concerning business and financial status, request for attendance (excluding a request for attendance to interested persons), etc. (excluding a request for attendance to interested persons), and investigate them, etc. (excluding a request for attendance to interested persons)." According to Article 21-2 (1) of the same Act, the person related to insolvency is defined as "person related to insolvency."

However, Article 1 Paragraph (1) of the same Act provides that persons related to insolvency who are required to comply with an investigation shall be limited to "persons related to insolvency who are deemed responsible for the insolvency or the fear of insolvency". The interpretation of the provision provides that there may be questions as to whether a debtor who fails to perform his/her obligation in an insolvent financial institution is liable for the insolvency of the insolvent financial institution, or where a debtor is held liable for the insolvency of the insolvent financial institution or where another liability for the insolvency itself is recognized. However, for the constitutional interpretation of the above provision, even if a debtor who fails to perform his/her obligation in an insolvent financial institution, etc., he/she cannot be deemed to be responsible for the insolvency in itself, and only persons related to insolvency who are deemed responsible for the insolvency due to other reasons shall be deemed to be persons related to insolvency who are deemed responsible for the insolvency of the insolvent financial institution. In addition, in order to be

As such, if a debtor who fails to perform his/her obligation against an insolvent financial institution is deemed to have a duty to comply with an investigation under Article 14 (7) of the Act on the Protection, etc. of Persons related to insolvency, who is a person subject to the Corporation, is not subject to the said penal provision, extremely strict and limited interpretation, and a debtor who fails to perform his/her obligation against an insolvent financial institution, is deemed to have a duty to comply with the investigation under Article 1

B. The problem of interpreting that the debtor who does not merely perform his/her obligation to an insolvent financial institution is liable for the insolvency

(1) The meaning and nature of the right to claim damages under the above legal provision

In a broad interpretation of the above provisions, the Corporation may investigate not only the investigation into officers and employees of an insolvent financial institution, but also the debtor who fails to perform his/her obligations to an insolvent financial institution (where the debtor is a corporation, the former and current officers and employees, such as its representative, etc.) with respect to the request for submission of materials concerning business and financial status. The purpose of the investigation is to demand the insolvent financial institution to exercise the right to claim damages against the debtor or to collect materials necessary

There is a little doubt about the title of the right to claim compensation for damages under the above provision. In general, in the legal system of commercial transactions, the claim for compensation for damages refers to the claim for monetary payment, the purpose of which is to cancel a contract or cancel a contract on the ground of nonperformance of a contractual obligation, and the transaction of lending money from a financial institution can be seen as a monetary loan in substance only when the form of a monetary loan for consumption is taken or a transaction of lending money through the sale and purchase of bills through a bill discount or payment through a bill discount is taken. The default in such financial transaction refers to the failure of the borrowed money until the due date. If the debtor fails to pay the borrowed money, the claim for return of the borrowed money can be made in accordance with the direct loan for consumption. The claim for the loan is a lawsuit seeking the performance of the obligation according to the nature of the terms and conditions of the contract. However, since the damages claim after the due date is not a claim for compensation for damages caused by default, it is not necessary to refer to the principal claim, and there is no room to see the right to claim compensation for damages arising from default against the debtor.

Then, if an insolvent financial institution has a right to claim damages on the part of the debtor corporation which is the person related to insolvency? In conclusion, the insolvent financial institution does not have a right to claim damages on the part of the debtor corporation which is the person related to insolvency who lends money. If this is viewed, there is a problem of how to interpret the right to claim damages under the above provisions of the law (Provided, That in this case, there is no separate consideration for other persons related to insolvency, and only the person related to insolvency is the debtor against the insolvent financial institution, and the debtor is the corporation, and the debtor is the corporation is the corporation. However, the conclusion can be applied to the case where a loan is granted by a former or incumbent employee such as the representative of the debtor corporation, etc., and a loan is granted by a fraudulent act such as providing false security or submitting false data on the status of assets, or the representative, etc. of the insolvent financial institution is granted a loan by actively participating in the act of breach of trust such as illegal loans by the executives and employees of the insolvent financial institution. In addition, the representative, etc. of the debtor corporation can be considered in the debtor's right to the above corporation.

In any case, an insolvent financial institution is liable for damages caused by illegal acts, such as the representative, etc. ( even if the representative is liable for damages caused by the failure to perform a delegation contract, which is caused by the act contrary to the intent of delegation, such as embezzlement, breach of trust, etc., according to delegation contract with the corporation, the representative must first recognize the fact of occupational embezzlement, breach of trust, etc. of the representative in order to recognize the liability).

Ultimately, the right to claim damages under the above statutory provisions is premised on the act of receiving criminal punishment such as occupational embezzlement, breach of trust, fraud, etc. of the representative of the debtor corporation ( even if based on the statement in the complaint of this case, it can be recognized that the corporation attempted to investigate illegal acts such as occupational embezzlement, breach of trust, etc. of the defendant who is the representative of the debtor corporation through the investigation of the defendant. Thus, in practice, the law is being enforced by the above interpretation).

Therefore, according to the above interpretation, the Corporation has the authority to investigate whether persons related to insolvency, such as the representative of the debtor corporation, are liable for damages caused by the illegal act, and if replaced, whether the persons related to insolvency have committed the illegal act in connection with the insolvency of insolvent financial institutions or the insolvency of the debtor corporation.

(2) In a broad interpretation, the unconstitutionality of the above laws and regulations is unconstitutional.

Article 11 (1) of the Constitution of the Republic of Korea provides that "All citizens shall be equal in front of the law," Article 12 (2) provides that "no citizen shall be forced to make a statement unfavorable to himself/herself in criminal case," and Article 11 (3) provides that "in cases of arrest, detention, seizure or search, a warrant issued by a judge upon request of a prosecutor shall be presented in accordance with due process."

In a broad interpretation of the applicable provisions of this case, the authority to conduct an investigation related to a criminal act shall be given to a debtor corporation and its representative, the spouse of its representative, and lineal ascendants or descendants of the representative and his spouse who have failed to perform the obligation to respond to the investigation and impose duties on the person subject to the investigation, and if the person subject to the investigation fails to perform the obligation to respond to the investigation or refuses to perform the obligation, it shall be punished by penal punishment. Although there is no special problem, it may not be a problem if the facts subject to the investigation are included in the criminal act as seen earlier. Under the legal system of Korea, even if the suspect refuses the investigation of the criminal investigation agency or fails to appear in the summons for criminal investigation, it is possible to conduct a forced investigation by executing the warrant issued by the court in accordance with the warrant principle under the Constitution, and even if it is not punished as a penal punishment (this shall not be punishable as destruction of evidence even if he/she destroys the evidence unfavorable to him/her), the above legal system may not be punished as a crime of a debtor, but shall not comply with a request for appearance and investigation.

Thus, the above provision provides that a person who borrowed money from an insolvent financial institution and fails to repay the money is treated significantly differently from other citizens, and there is room to be in violation of the above equality provision under the Constitution, and that compulsory investigation should be conducted with a warrant issued by the court in principle. This is because it is difficult to view that the warrant requirement of the Constitution is to pressure a criminal suspect more strongly than compulsory investigation under the warrant of the judge, and thus it is difficult to deem that the warrant requirement of the Constitution is scheduled.

On the other hand, it may be deemed that the constitutional provision that the imposition of a punishment without submitting materials unfavorable to him/her violates the constitutional provision that “no person shall be forced to make a statement unfavorable to him/her,” under the Constitution.

The basic ideology of the Constitution of the Republic of Korea is to realize the rule of law that intends to protect the fundamental rights of the people from abuse of state power, and the concept of the rule of law includes the ideology of the de facto rule of law that requires the observance of appropriate proportionality between the nature of the crime and the responsibility of the actor to determine the statutory punishment for the crime, and therefore, the discretion of legislators to define certain act as a crime and impose any punishment cannot be unlimited, and the requirement of Article 10 of the Constitution that respect and protect human dignity and value from the threat of punishment shall be followed, and Article 37 (2) of the Constitution of the Republic of Korea shall be followed, and the principle of the de facto rule of law shall be implemented by establishing the statutory punishment within the scope to which the principle of individualization may apply in accordance with the spirit of the prohibition of excessive legislation under Article 37 (2) of the Constitution, and the proper proportionality shall be maintained to correspond to the nature of the crime and responsibility (see Constitutional Court en banc Decision 2002Hun-Ba24, Nov.

Under our legal system, in cases where the State exercises the investigative authority over a suspect suspected of a crime to investigate a crime, or where an investigation agency or a court requests a suspect or a defendant to submit materials unfavorable to him/her or to an investigation agency or a court to attend a court, even if the defendant, etc. refuses to do so, the defendant can take into account the sentencing in consideration of the circumstances, or make a compulsory disposition according to the execution by issuing a detention warrant, and does not impose a penal punishment by itself as an element of the crime. However, a broad interpretation of the above provision provides that a penal punishment shall be imposed without distinction regardless of whether there is a suspicion of a crime, and where the Corporation investigates a person suspected of a crime, the person suspected of a crime is subject to more strong restraint than where he/she is investigated or tried by an investigation agency.

From this point of view, the above provision provides excessive disposition compared to acts, and there is room for violating the principle of prohibition of excessive legislation under the Constitution.

C. The meaning of the provision on constitutional interpretation

In order to avoid such unconstitutional interpretation, it is not allowed to investigate criminal acts with the authority of investigation recognized by the Corporation, and it is reasonable to interpret that the purport of the investigation is that only the authority to investigate the debtor's financial status or business-related matters is recognized to smoothly recover public funds through a claim for damages caused by the tort against the debtor (i.e., in order to ensure the effectiveness of compulsory execution against the debtor).

D. Whether the Defendant constitutes “a debtor who is deemed liable for insolvency” of insolvent financial institutions, etc.

In full view of all the evidence submitted by the prosecutor, the defendant is the representative of the debtor corporation who did not perform his/her obligation to Daegu Comprehensive Finance, which is an insolvent financial institution, and is not recognized as responsible for the insolvency of Daegu Comprehensive Finance, so the defendant cannot be viewed as such. Accordingly, the defendant does not have any obligation to comply with the request for investigation by the Corporation.

3. Conclusion

Thus, the defendant's case against the defendant constitutes a case where there is no proof of crime, so it is decided as per the disposition of not guilty pursuant to Article 325 of the Criminal Procedure Act.

Judges Kim Jong-han