Whether officers and employees of a financial institution are in the position of a person who administers affairs concerning their management of property between deposit holders (negative)

Articles 355(2) and 356 of the Criminal Act; Article 702 of the Civil Act

Supreme Court Decision 2008Do1408 Decided April 24, 2008 (Gong2008Sang, 821)

Defendant

Defendant

Attorneys Park Im-soo et al.

Suwon District Court Decision 2016No7707 decided April 28, 2017

The judgment of the court below is reversed, and the case is remanded to Suwon District Court Panel Division.

The grounds of appeal are examined.

1. The deposit is a contract for the consumption and deposit of money with a financial institution prescribed by the Act such as a bank as a depositee. The ownership of money deposited in the deposit account is transferred to the financial institution, and the deposit owner acquires a claim for the return of deposit through the deposit account. Thus, the officers and employees of the financial institution are obligated to comply with a legitimate claim for the return of deposit through the deposit account from the deposit owner, and are not in the position of a person dealing with the affairs relating to his property management (see Supreme Court Decision 2008Do1408, Apr. 24, 2008, etc.).

2. The reasoning of the lower judgment and the evidence duly admitted reveal the following.

A. From February 3, 2014 to June 23, 2015, the Defendant served as an employee in charge of credit affairs in Nonindicted Incorporated Company (hereinafter “Nonindicted Bank”) from around February 3, 2014.

B. According to an external business system that directly visits customers to process banking affairs, the Defendant received an application for a loan from nine victims directly at work or around their place of residence and received a loan application from the victims, and applied for a loan in the name of the victims to the Nonindicted Bank in the name of the victims.

C. However, the Defendant arbitrarily consumed KRW 516,764,315, total amount of loans deposited in the savings account in the name of the victims from May 21, 2014 to May 12, 2015, by issuing a new deposit account and a cash card in the name of the victims who did not deliver to the victims, or by issuing a new deposit account and a cash card in the name of the victims who had already been opened without the victims’ consent.

3. Examining the above facts in light of the legal principles as seen earlier, the loans deposited in the bank account under the name of the victims are owned by the Nonindicted Bank, and the Defendant’s employee manages the above loans and delivers the passbook in the deposit account issued by the Nonindicted Bank to the deposit owner is within the operations of the Nonindicted Bank, and cannot be deemed as belonging to the affairs of the victims who are the deposit owner. Therefore, the Defendant cannot be deemed to have the status of dealing with the management of the victims’ property. Accordingly, even if the Defendant voluntarily withdraws the loans deposited in the deposit account under the name of the victims, the crime of occupational breach of trust is established in relation to the victims

In addition, as long as the defendant, who is an employee of the non-indicted bank, withdrawn a loan deposited in the bank account in the name of the victims without authority, the victim's deposit claim remains without extinguishment, and the victims can still claim the return thereof from the non-indicted bank (see Supreme Court Decision 2010Da613, May 27, 2010, etc.). Thus, it cannot be said that the victim suffered property damage due to the withdrawal of the defendant's loan.

4. Nevertheless, the court below erred by finding the defendant as an employee of the non-indicted bank, on the grounds as stated in its ruling that the defendant is obligated not to arbitrarily withdraw the loans deposited in the bank account under the name of the victims because the defendant received an application for loans from the victims, and on the premise thereof, found the defendant guilty of the charge of occupational breach of trust added selectively in the court below. Accordingly, the court below erred by misapprehending the legal principles on the other person's business and damage, which affected the conclusion of the judgment. The ground of appeal assigning this error is with merit.

5. Therefore, without examining the remaining grounds of appeal, we reverse the judgment below, and remand the case to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Sang-ok (Presiding Justice)