(영문) 부산지방법원 2010.8.13.선고 2009노4801 판결

The defendant asserts that the defendant used a corporate card to purchase gift certificates to be paid to representatives attending the general meeting of community credit cooperatives and did not use a corporate card for personal interest. ② The defendant deposited money used prior to the settlement date of the corporate card, so there was no intent of illegal acquisition, and even though it did not cause damage to community credit cooperatives, the court below erred by misunderstanding facts and affecting the conclusion of the judgment.

B. misunderstanding of legal principles

In relation to the violation of the Community Credit Cooperatives Act, ① Article 85(2)6 of the Community Credit Cooperatives Act (hereinafter referred to as the “Act”) is a violation of an order under Article 28(3) of the Act. Article 28(3) of the Act comprehensively delegates to the Presidential Decree the management, etc. of surplus funds relating to the credit business of community credit cooperatives, thereby violating the principle of no punishment without the law.

(2) Article 33 of the Enforcement Decree of the Community Credit Cooperatives Act (hereinafter referred to as the “Enforcement Decree”) delegated by the Act stipulates that the president of the National Federation of Community Credit Cooperatives shall determine the purchase of securities among the methods of operating surplus funds, and delegates the elements of a crime to organizations other than State agencies, and deviates from the limit of delegated legislation, and thus both Article 85 (2) 6 of the Act and Article 33

The defendant asserts that the sentence of the court below (a fine of 1.5 million won) is too unreasonable.

2. Determination:

A. Judgment on the assertion of mistake of fact

In full view of the evidence duly admitted and examined by the court below, the corporate card of a community credit cooperative held by the defendant is used only for expenses related to the affairs of the credit cooperative, such as business promotion expenses and meal expenses, and the defendant purchases 100 merchandise coupons to protect the election pledge that he would pay the representatives of the general meeting's private expenses, 80 merchandise coupons out of 100 merchandise coupons were appropriated for the private expenses, 200,000 won was deposited in the corporate card settlement account on April 4, 2008, which is the day before the payment date of the corporate card, and 1 million won was deposited in the corporate card settlement account on April 4, 2008. The defendant purchased merchandise coupons with the corporate card at the time of investigation by the prosecutor's office, and 80 copies were used for purchasing 100 merchandise coupons with the corporate card, but 100 items were temporarily purchased with the corporate card after the payment date, and the defendant's assertion that it could not be recognized as the defendant's personal act of embezzlement and 2500 items of money.

B. Judgment on misapprehension of legal principles

Since it is practically impossible to provide for all laws and regulations related to criminal punishment without exception due to complex and diversification of social phenomenon, the limit of professional and technical ability of the National Assembly, and the limit of time adaptation ability, it is not in fact impossible to provide for all laws and regulations related to criminal punishment by law within a formal meaning without exception, and since it is not appropriate to do so, in cases where detailed discipline of legislators is impossible or where it is strongly required to flexibly cope with changes in the situation, delegation legislation is permitted under the premise that the delegated law is clearly determined to what kind of act subject to punishment is and what extent it can be predicted in terms of the elements of punishment, and in terms of punishment, the delegation legislation is clearly permitted under the premise that the kind, limit, and width of punishment are clearly prescribed (see, e.g., Supreme Court Decisions 200Do107, Oct. 27, 200; 205Do7474, Jan.

Article 66 (2) 6 of the former Community Credit Cooperatives Act (amended by Act No. 8485 of May 25, 2007; hereinafter referred to as the "former Act") provides that when executive officers, employees, or liquidators of a credit cooperative or federation have violated an order under Article 26 (3) of the former Act, they shall be punished by imprisonment for not more than five years or by a fine not exceeding ten million won, and Article 26 (3) of the former Act shall delegate matters concerning the operation of surplus funds of community credit cooperatives to the Presidential Decree. Article 26 (3) of the former Enforcement Decree of the Community Credit Cooperatives Act (amended by Presidential Decree No. 1958 of March 27, 2007; hereinafter referred to as the "former Enforcement Decree") provides that the scope of purchase of government bonds and securities shall be prescribed by the president of the Federation of Community Credit Cooperatives (hereinafter referred to as the "Federation of Korea") in addition to the deposit of surplus funds of community credit cooperatives under subparagraph 1, subparagraph 2, or monetary trust in financial institutions.

In light of the fact that the financial market is complicated and complicatedly changing, the regulations on the operation of surplus funds of community credit cooperatives should cope with it, but it is difficult for the National Assembly to predict all changes in the financial market and to revise the law whenever it comes to such changes. Therefore, it is inevitable to delegate the provisions on the operation method of surplus funds to the Enforcement Decree without specifying them in advance by law, and the concept of "operation of surplus funds" under Article 26 (3) of the former Act has relatively concrete meaning in advance. Therefore, it is expected that the predictability of the act subject to punishment is sufficiently expected, and Article 66 of the former Act, which is the punishment provision in case of violation of Article 26 (3) of the former Act, stipulates clearly the type, limit and width of punishment.

In addition, even when taking the risk in light of the purpose of the community credit cooperatives system, it is more difficult to secure and maintain soundness of assets than promoting the active increase of assets, and to that purport, Article 24 of the former Enforcement Decree of the same Act stipulates deposit of the Federation with regard to the method of operating surplus funds (Article 1) and money trust with financial institutions or trust companies (Article 24) and purchase of government bonds, local government bonds, and securities prescribed by the head of the Federation (Article 24). Therefore, if the purchase of securities is prescribed as one of the stable investment methods, it can be sufficiently predicted that the purchase of securities is a stable investment method corresponding to the purchase of government bonds and local government bonds, and if the purchase of securities is prescribed as one of such stable investment methods, it is extremely difficult to individually specify the specific type of the securities in Article 24 of the former Enforcement Decree, and the specific designation is requested to mobilize technical and professional knowledge in accordance with changes in the economic situation. Thus, it is ultimately possible to obtain re-issuance by the Enforcement Decree of the Federation.

In addition, considering that Article 26 (3) of the former Act and Article 24 (3) of the former Enforcement Decree of the former Enforcement Decree are executive officers, employees, or liquidators of a credit cooperative or federation with considerable knowledge of the business affairs of the credit cooperative, they directly take charge of, or closely related to, the business affairs of the credit cooperative, they shall not be deemed to violate the principle of no punishment without the law or to deviate from the limit of the delegated legislation, even if Article 26 (3) of the former Enforcement Decree of the Act stipulates that the management method of surplus funds is the method of operating state bonds, local government bonds, purchase of local government bonds, and purchase of securities as determined by the president of the federation.

In addition to the evidence duly admitted and examined by the court below, Article 28 (3) of the Act and Article 33 of the Enforcement Decree of the Act cannot be deemed to have violated the principle of no punishment without the law or to have exceeded the limit of delegated legislation, and therefore, the defendant's assertion of the misapprehension of the legal principle is without merit

In light of the above circumstances, there are favorable circumstances: (a) the Defendant has long been sentenced to a fine of this kind; (b) the Defendant has no particular criminal record other than twice before the settlement date for occupational embezzlement; (c) the Defendant has recovered from damage by depositing the amount embezzled by the Defendant before the settlement date; (d) the Defendant’s violation of the Community Credit Cooperatives Act has no damage to the Defendant’s treasury in purchasing each financial product; (b) the Defendant has believed and approved that there was an old age; and (c) the Defendant has no good condition to deny the facts charged in the instant case; (d) the Defendant purchased gift certificates using a corporate card that cannot be used for his personal purpose other than his business; and (e) embezzled one million won by settling the purchase of the gift certificates with the corporate card that cannot be used for the purpose other than his own business; (e) the Defendant’s purchase of the purchase of the gift certificates to the same financial institution in excess of the purchase limit for the same financial institution (such as purchase of the amount by around February 22, 2008; (e) the circumstances and circumstances of unfair sentencing order issued by the Defendant’s money surplus funds.

3. Conclusion

Therefore, the defendant's appeal of this case is without merit, and it is dismissed in accordance with Article 364 (4) of the Criminal Procedure Act. It is so decided as per Disposition.