A. Requirements for the so-called bad loans to constitute a crime of breach of trust

(b) Loans to recover irrecoverable bank bonds and the nature of breach of trust;

(c) the meaning of “the acquisition or grant of any property or property interest” in the crime of breach of trust.

(a) Where a person in charge of loan business, such as the heads of branch offices and heads of banks, etc., extended loans in excess of the amount of lending limit to a security, extended loans by taking things which cannot be secured as a security, etc. in violation of the relevant provisions of the bank on the business handling, and intends to constitute a crime of breach of trust, such loans shall meet the requirements, such as causing property damage to the bank by failing to take measures for securing loan claims, under the recognition that such loans do not constitute a crime of breach of trust.

B. Even if a loan was made by taking a loan as a collateral in excess of the lending limit amount for a collateral or an article that cannot be used as a collateral, if the loan was made by securing human resources and physical collateral for the loan and recovering the claim which cannot be recovered, and it can be accepted as falling under the ordinary scope of business execution, it cannot be deemed that the loan occurred as a part of the claim that is not certain to recover from the loan, and it constitutes a violation of the duty not taking measures for securing the claim as a person in charge of loan, or there was awareness of such violation of the duty

C. In the case of the crime of giving or receiving property or benefits in return for an unlawful solicitation as to his/her duties, a person who administers another's business shall acquire or provide property or benefits in return for such solicitation to the person who administers the business of the other person as his/her own property or benefits. As such, it cannot be deemed that the act of the administrative affairs manager collects his/her claim other than him/her, or the other party collects his/her obligation to him/her, or the other party performs his/her obligation to him/her, and even if his/her obligation to him/her is repaid to him/her, it shall not be deemed that the act of the administrative affairs manager has acquired or provided his/her benefit with incidental benefits, if it is primarily related to his/her business affairs and it is made as a result of his/her business affairs conducted for him/her.

(b)Article 356(c) of the Criminal Code; Article 357 of the Criminal Code

Defendant 1 and two others

Defendants

Attorney Yang Ho-hee (Defendant 1)

Busan District Court Decision 84No1379 delivered on May 23, 1985

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

We examine the grounds of appeal.

1. As to occupational breach of trust:

In a case where a person in charge of loan business such as a branch, etc. of a bank, in violation of the relevant provisions of the bank as to the business handling of the loan, loans, etc. by taking as security, or making loans, etc. which cannot be made by taking as security, if such loans constitute a crime of breach of trust, it shall meet the requirements such as causing property damage to the bank by failing to take measures to secure the loan claims under the recognition that such loans are in breach of trust. Therefore, if the loans are made to collect bank claims which cannot be recovered in a normal manner, the possibility of recovery by personal and physical security provided for the loan and the possibility of recovery of the loan which cannot be recovered by such loans shall be determined practically according to the specific situation in light of the bank's loan-related regulations or the scope of business execution in accordance with the business practices.

Therefore, even if a loan was made by taking a loan out as a collateral more than the loan limit amount for a collateral or an article which cannot be used as a collateral, if the loan was made by securing human resources and physical collateral for the loan and collecting the claim which cannot be recovered, and it can be accepted as falling under the ordinary scope of business execution, it cannot be deemed that the loan occurred as a part of the claim which is not certain to recover from the loan, and it constitutes a violation of the duty that is not taken as a person in charge of loan business, and there is no awareness of such violation of the duty.

In addition, even if the claim to recover was conducted by the head of a branch, who is the person in charge of the loan, and thus, recovery was intended to avoid the disadvantage of his/her civil responsibility and status, if it is mainly related to the loan business of a bank and actually beneficial to the bank, it cannot be readily concluded that there was an incidental violation of his/her duties.

In accordance with the facts acknowledged by the court below, the loan of this case was made in order to recover 50 million won due to the default of the company's credit loans which were extended to Jinjin Construction, and it was also conducted in order to recover the loan of this case, and since the real estate located in the Dong in Busan Metropolitan City, Busan Metropolitan City, located in the protection area of military installations and cannot be viewed as a loan security under the relevant provisions of the bank, it is not appropriate to make the loan of this case as a loan under the relevant provisions of the bank, the value equivalent to the appraised value and the loan of this case secured several joint and several sureties in addition to the above security while paying the loan of this case. Furthermore, according to the records, the above bank collected the loan of this case by realizing the loan of this case and secured the loan of this case against general property of the debtor and joint and several sureties, and it can be seen that the loan of this case can be recovered as the loan of this case in light of the possibility of collecting the loan of this case as collateral and the physical interest of the bank at the time of the loan of this case.

Therefore, while the court below acknowledged that the loan of this case was made in order to recover the accrued bank claims, it does not affect the conclusion of the judgment by misunderstanding the legal principles as to the intention of the crime of breach of trust and the nature of the duty, and failing to exhaust all necessary deliberations, on the premise that the loan of this case constitutes a violation of duty, solely on the basis of the fact that the loan of this case was made in order to recover the bank claims which cannot be recovered by Defendant 1’s own credit loan in violation of the bank lending regulations, and thereby, it constitutes an occupational breach of duty, without examining whether it actually benefits the bank to recover the accrued claims due to the loan of this case in light of the possibility of recovering the accrued bank claims and the specific circumstances at the time of the loan of this case such as the recovered amount of claims, etc.

All arguments pointing out the points are with merit.

2. As to the giving and taking of breach of trust:

In the case of the crime of misappropriation and acceptance of property, a person who administers another's business shall acquire property or benefits in return for an unlawful solicitation in connection with his/her duties, or give property or benefits in return for such solicitation to the person who administers the business of the other person as his/her own property or benefits. As such, the act of an administrator of the business to recover his/her claim or to repay his/her obligation to the other person cannot be deemed to constitute acquisition of the above property or grant of the other person's property, and even if his/her obligation is repaid to the person who administers the business of the other person, the act of administrator of the business shall not be deemed to be an incidental profit, if it is primarily related to his/her business affairs and it is made as a result of his/her business affairs for the principal.

According to the records, Defendant 2 and 3 used 80,000,000 won of the loans from the above bank as collateral for 500,000 won and thereafter used 500,000 won of the loans from the above bank. Since the above Sungjin Construction was a new credit loan of 50,000 won, and at that time, the above Defendants refused to repay 50,000,000 won of the loans from the above 50,000 won of the above 50,000 won of the above loans from the above 50,000 won of the above banks, it should be viewed that Defendant 1 had the above Defendants repay 500,000 won of the above loans from the above 500,000 won of the above 50,000 won of the above loans from the above 500,000 won of the above 500,000 won of the interest loans from the above 500,000 won of the above real property as collateral.

Therefore, from among the amount of subrogated payment for the above bank by Defendant 2 and 3, the amount of KRW 9 million shall not be separately removed, and it shall not be deemed that Defendant 1, who is the administrator of the affairs, has acquired the property or property benefits provided to him/her, but the court below recognized the facts as stated in its reasoning and found it as a crime of giving or taking property in breach of trust and taking property, thereby affecting the conclusion of the judgment.

The assertion pointing out an objection is well-grounded.

Therefore, the judgment of the court below on the defendant 1 and 3 shall not be maintained, and even though the defendant 2 did not submit a statement of grounds for appeal, the above grounds for appeal are common to the criminal facts against the same defendant, and thus the judgment of the court below against the same defendant shall not be maintained. Thus, the judgment of the court below shall be reversed and the case shall be remanded to the court below for a decision as

Justices Park Jong-hee (Presiding Justice)