[1] Whether deposit of surplus funds in shares of community credit cooperatives pursuant to the guidelines for the management of surplus funds in community credit cooperatives constitutes a matter requiring resolution by the board of directors under Article 66(2)4 of the Community Credit Cooperatives Act (negative)

[2] The case reversing the judgment of the court below which found the defendant guilty on the ground that deposit of the surplus funds of the Saemaul Bank with stock-type beneficiary certificates by the president of the Saemaul Bank and the Jeon Jong-man constitutes a matter requiring a resolution of the board

[1] Matters requiring a resolution by the board of directors prescribed in Article 66 (2) 4 of the Community Credit Cooperatives Act mean the cases where the law requires a resolution by the board of directors among the matters prescribed in each subparagraph of Article 16 (3) of the same Act. Thus, it does not include any matters referred to by the board of directors voluntarily, such as Article 16 (3) 6 of the same Act. Article 24 of the Enforcement Decree of the same Act provides that surplus funds of a credit cooperative may be operated by the method of depositing in the federation, depositing in financial institutions or depositing in trust companies, buying and selling securities as provided by the head of the national bonds, local government bonds, and the head of the National Federation of Community Credit Cooperatives provides that the fund of a credit cooperative may be purchased or deposited after the resolution by the board of directors within the limit of 20% of the total amount of surplus funds of the credit cooperative (Article 6 (2) 4 of the Guidelines for the Operation of Surplus Funds of Saemaul Cooperatives). However, the above guidelines merely constitute the internal regulations for the implementation of Article 24 of the above guidelines for the Community Credit Cooperatives Act.

[2] The case reversing the judgment of the court below which found the defendant guilty on the ground that the chief director of community credit cooperatives and the former director's deposit of surplus funds in the share-based beneficiary certificates constituted a matter requiring a resolution of the board of directors

[1] Articles 16(3)6 and 66(2)4 of the Community Credit Cooperatives Act, Article 24 of the Enforcement Decree of the Community Credit Cooperatives Act / [2] Articles 16(3)6 and 66(2)4 of the Community Credit Cooperatives Act, Article 24 of the Enforcement Decree of the Community Credit Cooperatives Act

Defendant 1 and one other

Defendants

Busan District Court Decision 200Dadan91 delivered on April 21, 2000

Supreme Court Decision 2000Do4099 Delivered on December 24, 2001

The judgment of the court below is reversed.

Defendants are not guilty.

1. The facts charged and the judgment of the court below

The summary of the facts charged against the Defendants is as follows: (a) the Defendants conspired to deposit the surplus funds of the community credit cooperatives in the same branch of the Korea Investment Trust in Busan Dong-gu on July 6, 199 with a stock-type beneficiary certificate; (b) despite the resolution of the board of directors, it should be executed after obtaining the resolution of the board of directors; (c) however, it deposited the surplus funds of the credit cooperatives in a securities trust with a stock-type beneficiary certificate, and (d) at least nine times during the period from around the time to the 16th day of the same month without obtaining the resolution of the board of directors; and (d) the Defendants voluntarily deposited the surplus funds of the above credit cooperatives in the share-type beneficiary certificate at will; and (e) the lower court

2. Summary of grounds for appeal;

First, the Defendants’ deposit of surplus funds of community credit cooperatives with 3.6 billion won or less at shares management ratio without a resolution of the board of directors as to community credit cooperatives. However, Article 16(3)6 of the Community Credit Cooperatives Act only provides for matters requiring a resolution of the board of directors as to the operation of surplus funds of community credit cooperatives. Other provisions of the Community Credit Cooperatives Act and the Enforcement Decree thereof do not require a prior resolution of the board of directors. Rather, under the organization regulations of community credit cooperatives, the Defendants’ deposit surplus funds of community credit cooperatives with shares should only be subject to a resolution of the board of directors in violation of Article 14 [Attachment 6] and the guidelines for the punishment of community credit cooperatives under the Act on the Establishment of Community Credit Cooperatives without a resolution of the board of directors. The above guidelines for the operation of surplus funds of community credit cooperatives under the Act on the Establishment of 60% of the total amount of such surplus funds cannot be deemed to violate the guidelines for the establishment of the board of directors without a resolution of the board of directors.

3. Determination

According to the records, the defendants are acknowledged to have deposited surplus funds of the above credit cooperative in share-based beneficiary certificates without the resolution of the board of directors. However, since this society's resolution required under Article 6 (2) 4 of the Community Credit Cooperatives Act refers to the matters stipulated in the subparagraphs of Article 16 (3) of the same Act that require the necessary resolution of the board of directors, matters brought by the board of directors as referred to in Article 16 (3) 6 of the same Act are not included in voluntary matters brought by the board of directors. In addition, under Article 24 of the Enforcement Decree of the same Act, surplus funds of the credit cooperative can be operated by the methods of depositing them to the federation, money trust at financial institutions or trust companies, government bonds, local government bonds, and securities determined by the president of the National Community Credit Cooperatives Federation, which require the resolution of the board of directors within the limit of 20% of the total amount of surplus funds of the above credit cooperative, the above guidelines for the operation of surplus funds of the community Credit Cooperatives Act is merely an unlawful matter under Article 6 (2) 4 of the Enforcement Decree of the Community Credit Cooperatives Act.

4. Conclusion

Therefore, the judgment of the court below is reversed under Article 364(6) of the Criminal Procedure Act without a need to decide on the remaining legal principles of the defendants and the grounds for appeal of unfair sentencing, and the judgment below is again decided as follows after pleading.

The summary of the facts charged of this case is as stated in Paragraph 1., and as stated in Paragraph 3., the above facts charged constitute a case where the facts charged do not constitute a crime, and thus, each of the defendants is acquitted under the former part of Article 325 of the Criminal Procedure Act

Judges Seo Jong-py (Presiding Judge)