2015Do317 Violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Fraud)

A

Prosecutor

Attorney J (Court-Appointed)

Daejeon High Court (Cheongju) Decision 2014No182 Decided December 11, 2014

August 27, 2015

The judgment of the court below is reversed, and the case is remanded to Daejeon High Court.

The grounds of appeal are examined.

1. The crime of fraud under Article 347 of the Criminal Act is established by deceiving a person to receive property or to acquire property benefits or to have a third party receive property benefits, and the value of the transferred property or property benefits is not much an issue (see Supreme Court en banc Decision 2005Do7288, Apr. 19, 2007).

2. Review of the reasoning of the lower judgment and the record reveals the following facts.

A. On May 2, 2008, the victim entered into a comprehensive collateral guarantee contract between the new bank (hereinafter referred to as the "new bank") and the new bank (hereinafter referred to as the "new bank"), under which D (hereinafter referred to as the "D) as the principal debtor) will jointly and severally guarantee all obligations arising from the current and future lending of bills, deed lending, check lending, discount of bills, payment guarantee, sales bond transaction, mutual installment transaction, bond acceptance, securities lending, foreign exchange transaction and other credit transaction, the victim agreed to set the guarantee limit amount as KRW 1.8 billion, and the date set forth in the "the first designated type" as the settlement term for collateral guarantee (hereinafter referred to as the "instant collateral guarantee").

Article 1 (1) 4 of the contract prepared at the time of the instant guarantee contract lists the types of the settlement term of the settlement term of the settlement term of the settlement term of the settlement term of the settlement term of the settlement term of the settlement term of the settlement term of the settlement term of the settlement of the settlement term of the settlement term of the settlement term of the settlement term of the settlement term of the settlement term of the settlement term of the settlement term of the settlement. In this case, the guarantor may designate the settlement term of the settlement term of the settlement of the settlement term of the settlement by written notification, but the settlement term shall be 14 days after the arrival

B. On May 6, 2008, D entered into an agreement that changes the credit term period of the instant credit transaction agreement between the new bank and the new bank into an agreement that changed the credit term to 896 million won, the credit term to 896 million won, the expiration date of the credit term to 4 November 2008, and the credit transaction agreement (hereinafter referred to as the "credit transaction agreement of this case") with the changed interest rate to 3.4%, and the victim entered into an agreement that changed the credit term of the instant credit transaction agreement between the new bank on May 4, 2009 and the new bank on November 28, 2009 (hereinafter referred to as "the agreement of this case"), and the victim entered into an agreement that changed the credit term of the instant credit transaction agreement to 5.2% +52% as joint and several surety at the time of entering into the agreement of this case (hereinafter referred to as "the agreement of this case").

D. Meanwhile, on March 11, 2008, D entered into a credit transaction agreement (hereinafter referred to as a "comprehensive loan agreement") with the new bank on a comprehensive loan for the subject of credit, the credit limit of KRW 500 million for the date of expiration of the term of the term of the credit, and the interest rate of KRW 3.2045,00 for the subject of the credit transaction (hereinafter referred to as the "comprehensive loan"), and entered into a limited collateral guarantee agreement with the limit of KRW 600,000 for the subject amount of March 10, 208. D was late February 23, 2009. As of January 19, 2012, D had a total of KRW 870,094,798 Won and interest rate of KRW 491,2397,976, KRW 12397, KRW 491,206, KRW 1231,2016, KRW 2137,2012.

In addition, as of December 6, 2013, the overdue amount related to the transaction of general loan reaches KRW 1,639,684,710, including the principal amount of KRW 870,094,798 and interest KRW 769,589,912.

3. We examine the above facts in light of the above legal principles and the relevant legal principles as stated in the judgment below.

A. (1) The instant collateral guarantee is the so-called comprehensive collateral guarantee that, instead of specifying a basic transaction contract, covers all obligations arising during the period for settlement of accounts for collateral, by means of credit transactions between the present or future creditors and the principal debtor within the limit of the limit of the limit of the collateral guarantee. The instant collateral guarantee is based on the following: (a) the guarantee obligation owed by the guarantor is not directly liable for any increase or decrease of the principal obligation during the period for settlement of accounts for the principal debtor before the period for settlement of accounts for the collateral guarantee; and (b) the guarantee obligation to be borne by the guarantor

(2) Meanwhile, the instant joint and several surety directly covers the principal and interest (the distribution rate of the certificate of deposit + 5.52%) on the loan of general funds worth KRW 896 million as set forth in the instant modified agreement as the subject of a specific obligation to be paid on May 4, 2009 for the expiration date of the extension period.

(3) In light of the above circumstances, the object of guarantee of the instant continuing guarantee is all credit transactions that D bears to a new bank during the period for the settlement of accounts, including all general loan obligations and comprehensive passbook loan obligations, but not exceeding KRW 1.88 billion, barring any special circumstance. The object of guarantee of the instant joint and several surety is different from the object of guarantee and the scope of guarantee. As seen earlier, as of January 19, 2012, the guarantee obligation of the instant continuing guarantee is limited to KRW 1.88,000,000,000, out of the total amount of the principal and interest of the relevant loan, and the amount of the instant guarantee obligation under the instant continuing guarantee obligation is limited to KRW 1,361,218,774, and the amount of the principal and interest of the instant general loan plus KRW 80,000,000,0000,0000,0000,0000,0000,0000).

(4) Therefore, if a victim, who bears a continuing guarantee obligation within the scope of the collateral guarantee limit on all debts arising from all credit transactions, including general loan loans, had the victim make a joint and several surety of this case with the payment period separately from the collateral guarantee obligation on the whole amount of the principal and interest of general loan under the modified agreement of this case, even if the specific amount of profit arising from the joint and several surety of this case is different from the amount of profit, the defendant can be deemed to have obtained a new guarantee benefit, such as the increase in the amount of guarantee by the joint and several surety of this case and the reduction of the payment period, or let D obtain it. Meanwhile, the victim may be deemed to have conducted an additional property disposal act that gives disadvantages corresponding thereto.

B. However, contrary to the above, in a case where it can be acknowledged that the intention of D and D and D, as the party concerned, limited the instant collateral guarantee to the guarantee of general fund loans, in light of the motive and purpose of concluding the instant collateral guarantee contract, the content of the guaranteed obligation, the guarantee limit of the instant collateral guarantee, the relationship between the credit limit amount of the instant credit transaction agreement and the credit limit amount, transaction practices, etc., and thus, the instant collateral guarantee can be deemed as an individual limit guarantee, and thus, the scope of the guaranteed obligation can be deemed as a general fund loan obligation. Thus, there is no difference between the instant collateral guarantee and the transaction subject to the credit transaction subject to the instant joint and several guarantee.

However, as seen above, while the obligation of the instant continuing guarantee is limited within the scope of the ceiling, the obligation of the instant joint and several guarantee is the total amount of the principal and interest obligation of general funds loans, and there is no difference in the payment period. Thus, the joint and several guarantee of this case still gains new guarantee interest and the victim suffers disadvantage.

4. Nevertheless, the lower court determined otherwise, that the instant modified agreement was merely a so-called "large exchange that changes the expiration date and interest rate between the credit maturity period of the instant credit transaction agreement," and concluded that the Defendant cannot be deemed to have acquired property benefits or the victim did an additional property disposal act by the instant modified agreement in relation to the victim, a joint and several surety.

Therefore, in so determining, the lower court erred by misapprehending the legal doctrine on disposal, property gains, and the subject and scope of guarantee in fraud, thereby adversely affecting the conclusion of the judgment. The allegation in the grounds of appeal assigning this error is with merit.

5. 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 Kim Jae-young

Justices Lee In-bok

Justices Kim In-bok, Counsel for the defendant

Justices Go Young-young