Whether the so-called "alternative exchange" constitutes "payment, loan, or discount of bill exceeding the limit of loan amount to the same person subject to prohibition and punishment under the Mutual Saving and Finance Company Act (negative)

According to Articles 12 and 39 of the Mutual Savings and Finance Company Act, a mutual savings and finance company may not provide a benefit, loan, or discount of bills exceeding the limit prescribed by the Presidential Decree within the extent of 20/100 of its equity capital to a same person (the Act prior to the amendment by Act No. 5501, Jan. 13, 1998 provides that the lending limit to a certain small enterprise and small-medium enterprise shall be 10/100 of its equity capital through the amendment of the Act, but the Enforcement Decree of the same Act provides that the lending limit to a certain small enterprise and small-medium enterprise shall be 10/100 of its equity capital after the amendment of the Act). Although the so-called large lending that pays its existing debt only through a formal new loan without actually receiving funds falls under a separate loan, it is merely an extension of the maturity period, and thus, is prohibited and punished under the Mutual Savings and Finance Company Act, it does not constitute "payment, loan, or discount of bills exceeding the same person."

Articles 2 subparagraph 4-2, 12, and 39 (3) 4-2 of the Mutual Savings and Finance Company Act;

Defendant

Defendant

Law Firm Jeong, Attorney Lee Jong-il

Jeju District Court Decision 2000No364 delivered on April 18, 2001

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

According to the reasoning of the judgment of the court below, the court below affirmed the judgment of the court of first instance that found the defendant guilty and dismissed the defendant's appeal by maintaining the judgment of the court of first instance that held the defendant guilty on the ground that the defendant was jointly processed in the act of co-defendant in the court of first instance on the ground that the defendant was guilty, and most of the above excess loans were conducted in the form of exchange for the purpose of extending the payment period of the amount previously loaned. Although the defendant did not actively participate in the decision of the first loan, the defendant received a report on the contents and purport of each excess loan from the employee in charge and received approval as to each excess loan.

According to Articles 12 and 39 of the Mutual Savings and Finance Company Act, a mutual savings and finance company may not provide a benefit, loan, or discount of bills exceeding the limit prescribed by the Presidential Decree within the extent of 20/100 of its equity capital to a same person (the Act prior to the amendment by Act No. 5501, Jan. 13, 1998 provides that the lending limit to a certain small enterprise and a small-medium enterprise shall be 10/100 of its equity capital through the amendment of the Enforcement Decree, but the Enforcement Decree provides that the lending limit to a certain small enterprise and a small-medium enterprise shall be 10/100 of its equity capital through the amendment of the Enforcement Decree) and the so-called substitution where the existing debt is repaid only formally without the actual receipt of funds constitutes a separate loan, but actually, it is merely an extension of the maturity period, and thus, is prohibited and punished under the Mutual Savings and Finance Company Act.

Therefore, as acknowledged by the court below, if the defendant's excessive loan constitutes a substitute loan made for the purpose of extending the repayment period of the money borrowed prior to such excess loan, this does not constitute an act of excess loan prohibited by the Mutual Savings and Finance Company Act, and even if the court below found that the above loan was made as a substitute loan, the court below convicted him of the violation of law by misunderstanding the legal principles as to excess loan prohibited by the Mutual Savings and Finance Company Act and as to the legal nature of the substitute loan, which affected the conclusion of the judgment (However, the court below erred in the misapprehension of legal principles as to the act of excess loan prohibited by the Mutual Savings and Finance Company Act, which affected the conclusion of the judgment (However, evidence that the above excess loan was made as the so-called substitute loan and the testimony of the police misunderstanding of the fact that the above excess loan was made as a witness, barring any special circumstance, it is difficult to understand that there is no document corresponding to the above, and considering the fact that there is no document, it is a new loan in the computer of the Korea Mutual Savings and Finance Company at the time of investigation.

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 Son Ji-yol (Presiding Justice)