[1] Requirements for the so-called bad loans to constitute a crime of breach of trust

[2] New loans to recover irrecoverable bank claims and the nature of breach of trust

[3] The case holding that even if an additional loan could not be extended because it was already registered as bad credit holder, even if it was caused by a computerized manipulation as if the overdue loan was fully repaid, if the amount of the collected credit is more than the amount of the credit, it shall be deemed that the loan financial institution was a profit, not a loss, in calculating the amount of credit

[1] Article 356 of the Criminal Act / [2] Articles 355 (2) and 356 of the Criminal Act / [3] Articles 355 (2) and 356 of the Criminal Act

[1] Supreme Court Decision 85Do1339 delivered on April 4, 1987 (Gong1987, 837) / [2] Supreme Court Decision 2000Do3716 delivered on June 28, 2002 (Gong2002Ha, 1877)

Defendant 1 and one other

Defendants

Attorneys Kim Jong-soo et al.

Gwangju District Court Decision 2006No1991 Decided August 30, 2007

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

We examine the grounds of appeal.

1. The facts established by the court below are as follows.

A. On April 26, 2001, Nonindicted Party 1 was responsible for the principal and interest of KRW 20,00,000 (the loan of August 29, 1998), the agreed interest rate of KRW 7,232,380, overdue interest of KRW 30,870,950, and the principal and interest amount of KRW 30,870,950, to the Central Saemaul Bank (the credit cooperative of this case was classified as the credit cooperative of this case as the most difficult claim to be recovered). Accordingly, Nonindicted Party 1 was registered as the bad credit amount of the credit cooperative of this case.

B. Around April 26, 2001, Nonindicted 1’s wife, Nonindicted 2, Nonindicted 2, and Nonindicted 4, a public official, were the joint and several sureties of the loan principal amounting to KRW 13,66,00, overdue interest amounting to KRW 2,685,510, and KRW 16,351,510. However, Nonindicted 2, a joint and several sureties’s payment of the loan principal was made by the Credit Management Team of the instant Credit Depository, and Nonindicted 2, a creditor, even after taking last various legal procedures, such as the exercise of a security right and compulsory execution, had been registered in the instant Credit Depository. However, Nonindicted 3 and Nonindicted 4, a joint and several sureties, who were public officials, were the joint and several sureties. Moreover, the provisional seizure was made on the payment of the said joint and several sureties around March 8, 201, immediately before the instant loan.

C. According to the credit business regulations of the instant credit cooperative, additional loans cannot be granted to Nonindicted 1 registered as bad credit holders, but additional loans may be granted only when it is intended to recover and dispose of the existing overdue loans, or there is a special approval of the president of the instant credit cooperative (approval of loans to a person registered as bad credit information holders).

D. Around April 2001, Non-Indicted 1 decided to purchase a building of approximately 150 square meters and above 2nd floor (hereinafter “the instant real estate”) located in the Hancheon-si, the Hancheon-si, and concluded a sales contract with Non-Indicted 5 on the instant real estate between Non-Indicted 5 and the owner. At that time, in order to raise KRW 40,00,000, which is a part of the purchase price, the Non-Indicted 1 requested that Defendant 2, who was concurrently engaged in the instant real estate, provide it as security after completing the registration of ownership transfer of the instant real estate, requested to provide it as security. Defendant 2’s statement that “A loan can be made only if an existing overdue loan is partially repaid,” and consented to partial repayment.

E. Accordingly, after consultation with Defendant 1, the head of the instant credit cooperative, Defendant 2: “The condition that the instant real estate was repaid in full amount of KRW 6,66,00,00 among the previous overdue loans of Nonindicted Party 1 and the previous overdue loans of Nonindicted Party 2, Nonindicted Party 1, the principal amount of which was KRW 13,66,00,00,” was added to KRW 70,000; Defendant 2, as a physical security for securing the instant loan claims, was set up a collateral security right with KRW 10,000 on April 21, 201 with respect to the instant real estate (Defendant 2, on April 25, 2001, prepared an independent appraisal report with the content that the instant real estate was appraised as KRW 101,432,500 on April 25, 201, Nonindicted Party 2, as a joint guarantor, was deleted by Nonindicted Party 2’s personal collateral, and made Nonindicted Party 16, a joint guarantor of the instant loan in arrears of KRW 16.

F. KRW 70,000,000 among the loans of this case, was used for the repayment of the principal of the existing loan in arrears of Non-Indicted 1; KRW 13,66,000 among them; KRW 13,66,000 for the repayment of the principal of the previous loan in arrears of Non-Indicted 2; KRW 2,000,000 for the transfer of ownership in the name of Non-Indicted 1 for the instant real estate; and for the creation of the establishment of a neighboring mortgage in the name of Non-Indicted 1 for the instant real estate; and KRW 40,000,000 for the remaining money was used for the personal purpose, such as the payment of purchase price to Non-Indicted 5; and KRW 8,00

G. After that, upon Non-Indicted 1’s delinquency in the repayment of the instant loan, the auction procedure on the instant real estate was commenced on or around June 16, 2003 after the lapse of at least two years from the date of the instant loan, upon the application for voluntary auction based on the right to collateral security (after that, the Defendants were all dismissed on or around September 3, 2003). In the auction procedure, the instant real estate was appraised at KRW 76,905,00,00, and eventually, on or around December 13, 2003, Non-Indicted 7 acquired the instant real estate at KRW 86,50,000,00, the purchase price of which was KRW 86,50,000,000, the principal amount of the instant loan was settled by the employees of the instant credit cooperative, the principal amount of the instant loan at KRW 70,00,000, the principal amount of the loan at KRW 90,000,100,20000.

2. In light of the circumstances revealed in the above facts, the court below reversed the judgment of the court of first instance against the Defendants on the grounds that the Defendants violated their duties, without taking reasonable measures for recovery of claims, such as receiving sufficient physical and human collateral to ensure the recovery of the instant loan claims from Nonindicted 1, registered as a person with bad credit information, or upon Nonindicted 1’s unfair request, who was in need of funds to purchase the instant real estate, and thus, violated their duties, the Defendants were convicted of the Defendants on the grounds that: (a) Nonindicted 1 had already been registered as a person with bad credit standing; (b) had carried out the instant loan by means of computer manipulation and deletion of the information about bad credit holders’ registration; and (c) the Defendants’ intent to obtain financial benefits from the instant credit cooperative is only incidental to the instant credit cooperative; and (d) there was no awareness that there was any damage to the instant credit cooperative.

Where a person in charge of loan business, such as the head of a branch office or branch office of a bank, extended a loan by taking a collateral in excess of the lending limit amount or an article that cannot be used as a collateral in violation of the relevant regulations of the bank, and thus, constitutes a crime of breach of trust, the person must meet the requirements such as causing property damage to the bank by causing a loan without certainty in recovery due to the failure to take measures to secure the loan claims under the recognition that such loan was in breach of trust. Therefore, where the loan was made to recover bank claims which cannot be recovered in a normal manner, the possibility of recovery through physical and personal security provided for the loan and the possibility of recovery of the loan which could not be recovered by such loan shall be determined in light of the specific situation in light of the bank lending regulations or the scope of business execution in accordance with the commercial practice. Therefore, even if the loan was made by taking a collateral exceeding the lending limit amount for the loan or by taking a collateral as collateral, if it was not possible to obtain physical and physical collateral collateral, and thus, it constitutes a violation of the ordinary scope of the loan duty to be determined as 184.

In light of the facts established by the court below, it is questionable whether the physical and human collateral offered for the instant loan claim can be determined that it is not adequate to collect the instant loan claim clearly. The court below held that the appraisal price of the instant real estate assessed by Defendant 2 pursuant to the credit business regulations of the instant credit cooperative was 101,432,50, as seen earlier. However, in light of the fact that the appraisal price of the instant real estate was 76,905,00 won at the auction procedure commenced for more than two years after the instant loan was 76,90,000 won, the value of the instant loan loan was merely flick to the principal of the loan, and it was not sufficient to secure the interest interest accrued later, and it was disposed of as 29,919,170 won, and thus, it is difficult to find that the Defendant 2 violated the relevant provisions of this case’s loan loan claim’s loan loan claim’s 60th, which was not enough to collect the loan loan claim’s loan claim’s value as well as the above.

In addition, according to the records, the defendants reported that the existing overdue loan claim against non-indicted 1 and the existing overdue loan claim against non-indicted 2 who was disposed of bad debt, which was classified as estimated loss at the time of the loan in this case, was made to collect even some of the overdue loan claim against non-indicted 1 and the previous overdue loan claim against non-indicted 2 who was disposed of bad debt, and it can be recognized that the loan in this case was executed after obtaining the approval. Thus, even though the defendants did not observe the loan-related provisions of the credit in this case and did not correctly observe the loan-related provisions of this case and did not accept the above loan-related provision as it goes beyond the ordinary scope of the person in charge of loan business.

Furthermore, the safe of this case collected KRW 6,00,00 of the principal amount of the non-indicted 1's existing overdue loan of KRW 60,00,00 and KRW 13,66,00 of the non-indicted 2's existing overdue loan of KRW 86,50,00, and interest KRW 2,00,00 among the previous overdue loan of KRW 13,00,00, and KRW 70,666,000 after the execution of the loan of this case, and KRW 104,66,00,00, KRW 60, KRW 60, KRW 300, KRW 160, KRW 600, KRW 60, KRW 160, KRW 306, KRW 60, KRW 86,000, KRW 60, KRW 306, KRW 50, KRW 160, KRW 360, KRW 86,505, KRW 198.

In light of the above, even if the Defendants did not comply with the loan-related regulations, it is difficult to conclude that the Defendants had awareness or intent to cause property damage to the instant safe at the time of the instant loan.

Therefore, even if there is room for the court below to determine that the loan itself constitutes a bad loan by further examining the value of physical and human collateral offered for the loan of this case and the possibility of recovering the principal and interest of this case, it shall be deemed that the loan of this case was executed without considering reasonable and reasonable recovery measures such as receiving sufficient physical and human collateral to secure the recovery of the loan of this case, and thus, it shall be deemed that the defendant's intent for the interest of the credit of this case at the time of the loan of this case is only incidental, and it shall be punished by the crime of occupational breach of trust by considering that the defendant's intent to obtain property benefits is the principal intention of the credit of this case at the time of the loan of this case, and it is erroneous in the misapprehension of legal principles as to the intention of the crime of occupational breach of trust and the nature of the crime of occupational breach of trust, which affected

The ground of appeal pointing this out is with merit.

3. Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Shin Hyun-chul (Presiding Justice)