[1] Whether the act of lending funds for a specific purpose beyond the scope of funding may cause property damage to the person operating the funds for the crime of occupational breach of trust (affirmative)

[2] Whether the provision of Article 2 subparag. 50 of the Enforcement Decree of the Act on the Aggravated Punishment, etc. of Specific Crimes as one of the government-managed enterprises under Article 4(1) of the same Act is unconstitutional and unlawful, beyond the limit of delegated legislation (negative)

[1] In accordance with the Government’s “Measures for Reduction of Fishing Debt” that was raised by the National Federation of Fisheries Cooperatives and borrowed by the Fisheries Cooperatives for the purpose of the Fisheries Fisheries Cooperatives pursuant to the “Measures for Reduction of Fishing Debt,” the term “fisheries Improvement Fund” is limited to the scope of the principal and interest of the existing high interest loan, since the subject of support is limited to the enterprises operating the fisheries that received a loan of at least KRW 50 million from various fisheries funds, and the degree of support is limited to the scope of the principal and interest of the existing high interest loan. Thus, even if the above business improvement fund is loaned to a disqualified person or borrowed to an eligible person, the act of lending exceeding the upper limit of support even if the above business improvement fund is provided with sufficient security, thereby undermining the collection of the above funds by causing the reduction of the above business improvement fund raised for a specific purpose and thereby undermining the original purpose, the

[2] Since NFF and its member cooperatives may be included in the category of government-managed enterprises under Article 4(1)2 of the Act on the Aggravated Punishment, etc. of Specific Crimes, it cannot be said that Article 2 subparag. 50 of the Enforcement Decree of the same Act, which was delegated by Article 4(2) of the same Act, stipulated as one of the National Federation of Fisheries Cooperatives and its member cooperatives as one of the government-managed enterprises under Article 4(1) of the same Act, is unconstitutional and illegal provisions beyond the limit of delegated legislation.

[1] Articles 35(2) and 356 of the Criminal Act; Article 3 of the Act on the Aggravated Punishment, etc. of Specific Crimes / [2] Article 4(1) and (2) of the Act on the Aggravated Punishment, etc. of Specific Crimes; Article 2 subparag. 50 of the Enforcement Decree of the Act on the Aggravated Punishment, etc. of Specific Crimes; Article 75

[1] Supreme Court Decision 97Do2042 delivered on October 24, 1997 (Gong1997Ha, 3709) / [2] Supreme Court Decision 2000Do926 delivered on September 8, 2000, Supreme Court Decision 2000Do733 Delivered on October 30, 2001

Defendant

Defendant

Attorneys Nam-han et al.

Seoul High Court Decision 2005No384, 2006No2614 decided January 12, 2007

The appeal is dismissed. 95 days out of detention days after the appeal shall be included in the original sentence.

The grounds of appeal are examined.

1. Regarding ground of appeal No. 1

A. In light of the records, the court below acknowledged facts based on the adopted evidence, and found that the defendant conspireds with the non-indicted 1 by ordering or requesting the non-indicted 1 to lend unfair loans for the improvement of management of fisheries management, and rejected the grounds for appeal as to the mistake of facts against the defendant's assertion that the non-indicted 1's statement is wrong as evidence, and it is merely an error of selecting evidence belonging to the exclusive authority of the court below and thus, it cannot be accepted. Accordingly, the judgment below did not err in the rules of evidence as otherwise alleged in

B. In accordance with the Government’s “Measures for Reduction of Fishing Liabilities”, the term “fisheries management improvement funds” raised by the National Federation of Fisheries Cooperatives (hereinafter “Maritime Fisheries Cooperatives”) and borrowed from the Maritime Fisheries Cooperatives (hereinafter “Maritime Fisheries Cooperatives”) is limited to the scope of the principal and interest of the existing high interest loan funds, since the scope of support is limited to the fisheries enterprises with at least KRW 50 million loan of various fisheries funds, and the degree of support is within the scope of the principal and interest of the existing high interest loan. Thus, even if the above management improvement funds are loaned to a disqualified person or eligible person, the act of lending exceeding the limit of support even if the above management improvement funds are provided with sufficient security and the collection of the loan is guaranteed, it ultimately undermines the reduction of the above management improvement funds raised for a specific purpose, and thus, the Maritime Fisheries Cooperatives suffers property damage due to the above management improvement funds (see Supreme Court Decision 97Do2042, Oct. 24, 197).

In the same purport, the court below held that the act of supporting KRW 900 million in excess of the support limit constitutes an act of causing property damage to the marine fishery union itself, and therefore, the crime of occupational breach of trust is established, and there is no error in the misapprehension of legal principles as to occupational breach of trust, as otherwise alleged in the ground of appeal.

2. Regarding ground of appeal No. 2

(6) The former Fisheries Cooperatives Act (amended by Act No. 543, Dec. 13, 1997; hereinafter referred to as the "Act") provides for the establishment and dissolution of fisheries cooperatives by district, fisheries cooperatives by industry, fisheries cooperatives by industry, and the National Federation of Fisheries Cooperatives (hereinafter referred to as the "NFC") for the purpose of improving their economic and social status and increasing their production power, and provides for detailed provisions concerning the establishment and dissolution of the national economy; the qualifications and rights of its members; the rights and duties of its executives; the activities of fisheries cooperatives including NFFC may be affected by the national economy; Article 10 of the Act and subordinate statutes or the Ordinance of the Ministry of Oceans and Fisheries (hereinafter referred to as the "Act"); Article 20 of the Act and subordinate statutes; Article 10 of the Act and subordinate statutes or the Ordinance of the Ministry of Maritime Affairs and Fisheries may, if he/she deems it necessary for the Association to carry out an order to suspend its business or to take an administrative disposition with respect to its credit business again (Article 10 of the Act);

The decision of the court below to the same purport is just, and there is no error in the misapprehension of legal principles as to government-managed enterprises under Article 4 (1) of the Aggravated Punishment Act as otherwise alleged in the ground of appeal.

3. As to the third ground for appeal

In light of the records, after recognizing the facts as stated in its reasoning based on the adopted evidence, the court below is justified in finding the fact that the defendant ordered the illegal loan of this case to Non-Indicted 3, and there is no violation of the rules of evidence as otherwise alleged in the ground of appeal.

4. Therefore, the appeal shall be dismissed, and part of the detention days after the appeal shall be included in the original sentence. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Nung-hwan (Presiding Justice)