Open Decision Ledger · Economic crime
Scope of the amount of loss in occupational breach of trust through improper loans and the meaning of the amount of gain under Article 3 of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes
Translated from the Korean original. Read the Korean
Supreme Court, Mar. 24, 2000, 2000Do28 (judgment)
Case name: 특정경제범죄가중처벌등에관한법률위반(배임)
Official text on the National Law Information Center
Question
Where the crime of occupational breach of trust is established through improper loans, are the amount of loss and the amount of gain under Article 3 of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes calculated on the basis of the entire loan amount?
Holding
The amount of loss is not the amount exceeding the collateral value or the amount impossible to recover, but the entire loan amount as to which there is a risk of loss; and if a third party acquired this, the whole of it is the value of the pecuniary benefit that the third party was caused to acquire. The Supreme Court, taking the amount of gain under Article 3 of the same Act to mean the amount of gain from a single simple offense or the aggregate amount where a single comprehensive offense is constituted, affirmed the judgment of the court below.
Summary of the holding, verbatim
재산상 권리의 실행이 불가능하게 될 염려가 있거나 손해발생의 위험이 있는 대출금 전액을 손해액으로 보아야 하며, 그것을 제3자가 취득한 경우에는 그 전액을 특정경제범죄가중처벌등에관한법률 제3조에서 규정한 제3자로 하여금 취득하게 한 재산상의 가액에 해당하는 것으로 보아야 한다.
Unofficial English translation
The entire amount of loan funds must be regarded as the amount of loss where there is a concern that enforcement of proprietary rights will become impossible or there is a risk of loss, and where such loan funds have been acquired by a third party, the whole amount must be regarded as falling within the value of the property that the third party was caused to acquire as provided in Article 3 of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes.
Disposition
Dismissed Stated in the decision
상고를 기각한다.
Unofficial English translation
The appeal is dismissed.
Form of the test
Existing test applied Read from the decision
손해발생의 위험이 있는 대출금 전액을 손해액으로 보아야 하며
Unofficial English translation
the entire amount of loan funds for which there is a risk of loss must be regarded as the amount of loss, and
Factors
- 담보물의 가치를 초과하여 대출한 금액이나 실제로 회수가 불가능하게 된 금액만을 손해액으로 볼 것은 아니고
- 재산상 권리의 실행이 불가능하게 될 염려가 있거나 손해발생의 위험이 있는 대출금 전액
- 단순일죄의 이득액이나 혹은 포괄일죄가 성립하는 경우의 이득액의 합산액
Unofficial English translation
• The amount of loss need not be limited to the amount lent in excess of the value of the collateral or to the amount that has in fact become impossible to recover, and
• the entire amount of loan funds where there is a concern that enforcement of proprietary rights will become impossible or there is a risk of loss
• the amount of gain in a single simple offense or, where a single comprehensive offense is established, the aggregate of the amounts of gain
Relation to precedent
Follows earlier decisions Stated in the decision
대법원 1989. 4. 11. 선고 88도1247 판결(공1989, 781), 대법원 1996. 7. 12. 선고 95도1043 판결(공1996하, 2561)
Unofficial English translation
Supreme Court Decision 88Do1247 decided April 11, 1989 (Gong 1989, 781); Supreme Court Decision 95Do1043 decided July 12, 1996 (Gong 1996 Ha, 2561)
Decisions referred to
[1] 대법원 1989. 4. 11. 선고 88도1247 판결(공1989, 781), 대법원 1996. 7. 12. 선고 95도1043 판결(공1996하, 2561) / [2] 대법원 1989. 6. 13. 선고 89도582 판결(공1989, 1103), 대법원 1993. 6. 22. 선고 93도743 판결(공1993하, 2193)
Burden of proof
Not addressed Not in the decision
Open question and revisit condition
How should it be determined whether portions of improper loans for which sufficient collateral was secured from the outset, and as to which there was in fact no risk of loss, are included in the amount of loss?
If subsequent decisions are rendered concerning the method of calculating the amount of gain under Article 3 of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes or the determination of the amount of loss in breach of trust through improper loans, this reading will be reviewed again.
Cross-family AI independent reading & axis check
6 of 8 axes matched GPT-6 Astra (OpenAI, codex CLI) · 2026-10-16
A comparison with an independent reading by another AI model (GPT-6 Astra), which read only the original text without seeing the first reading, showed agreement on 6 of the 8 axes, and the readings diverged on Axis 4 (Form of the test) and Axis 8 (Open question and revisit condition).
Axis 4 (Form of the test): Primary “Existing test applied” vs Independent “Elements stated”
As the original text defines the scope of the amount of loss in improper loans and explains the unit of crime for the amount of gain, the first reading may place weight on the application to that case, while the independent reading may place weight on the statement of general requirements for calculation.
재산상 권리의 실행이 불가능하게 될 염려가 있거나 손해발생의 위험이 있는 대출금 전액을 손해액으로 보아야 하며Axis 8 (Open question and revisit condition): Primary “How should it be determined whether portions of improper loans for which sufficient collateral was secured from the outset, and as to which there was in fact no risk of loss, are included in the amount of loss?” vs Independent “As of what date should the materials used to assess the borrower's ability to repay and the status of the collateral be evaluated in order to recognize a risk of loss on the loan amount?”
The first reading asks whether portions with no risk due to sufficient collateral are included in the amount of loss, while the independent reading asks the reference point in time for the materials with which the ability to repay and the status of the collateral are to be assessed.
재산상 권리의 실행이 불가능하게 될 염려가 있거나 손해발생의 위험이 있는 대출금 전액을 손해액으로 보아야 하며, 그것을 제3자가 취득한 경우에는 그 전액을 특정경제범죄가중처벌등에관한법률 제3조에서 규정한 제3자로 하여금 취득하게 한 재산상의 가액에 해당하는 것으로 보아야 한다.Raw responses and comparison record: Protocol · Blind readings (JSONL) · Axis comparison (JSONL) · SHA-256 (JSON)
Lower-court contrast & scope of application
Lower-court reading vs. Supreme Court holding
Lower-court context: The court below (Daegu High Court Decision 99No445 decided December 14, 1999) found that the defendant, an executive director of a credit cooperative, colluded with the chairman of the board to make improper loans in breach of his duties, including extending loans beyond the lending limit and conducting inadequate credit and collateral value examinations; it thus recognized the intent for occupational breach of trust, treated the entire loan amount as the amount of loss, grouped the improper loan acts into a single comprehensive offense, and convicted him of a violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (breach of trust).
Supreme Court standard: The Supreme Court accepted the findings of the court below as they were. It held that even if part of the loan amount was later repaid, the determination of intent does not change, and it held that the findings of the court below on the amount of loss and the amount of gain were proper in light of prior decisions. Since a sentence of 2 years and 6 months of imprisonment was imposed in the case, the impropriety of sentencing cannot serve as a ground for final appeal, and the final appeal was dismissed.
Distinguishing conditions
- A case where there was no breach of duty at the time the loan was extended, or where the loan was made through normal lending procedures and collateral examination and no risk of loss is recognized
- A case where multiple improper loans lack the unity or continuity of intent and are assessed as substantive concurrence rather than a single comprehensive offense, so that the amounts of gain cannot be aggregated
- A case where acquisition by a third party is not recognized, such as where the loan amount remains within the financial institution rather than being acquired by a third party
Record verification notes
Before asserting the same conclusion, one must first check whether the improper loan acts can be grouped into a single comprehensive offense and whether a risk of loss actually existed at the time the loan was extended.
From the official text
Points at issue
[1] 부실대출에 의한 업무상배임죄가 성립하는 경우, 손해액의 범위(=대출금 전액) 및 위 대출금을 제3자가 취득한 경우, 특정경제범죄가중처벌등에관한법률 제3조 소정의 '제3자로 하여금 취득하게 한 재산상 이익의 가액'의 범위(=대출금 전액) [2] 특정경제범죄가중처벌등에관한법률 제3조 소정의 이득액의 의미
Unofficial English translation
[1] Where a crime of occupational breach of trust is established on account of a defective loan, the scope of the amount of loss (= the entire amount of the loan funds) and, where a third party has acquired the said loan funds, the scope of the "value of the pecuniary benefit that the third party was caused to acquire" as provided in Article 3 of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (= the entire amount of the loan funds) [2] The meaning of the amount of gain as provided in Article 3 of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes
Summary of the holding
[1] 부실대출에 의한 업무상배임죄가 성립하는 경우에는 담보물의 가치를 초과하여 대출한 금액이나 실제로 회수가 불가능하게 된 금액만을 손해액으로 볼 것은 아니고, 재산상 권리의 실행이 불가능하게 될 염려가 있거나 손해발생의 위험이 있는 대출금 전액을 손해액으로 보아야 하며, 그것을 제3자가 취득한 경우에는 그 전액을 특정경제범죄가중처벌등에관한법률 제3조에서 규정한 제3자로 하여금 취득하게 한 재산상의 가액에 해당하는 것으로 보아야 한다. [2] 특정경제범죄가중처벌등에관한법률 제3조에서 말하는 이득액은 단순일죄의 이득액이나 혹은 포괄일죄가 성립하는 경우의 이득액의 합산액을 의미한다.
Order
상고를 기각한다. 상고 이후의 구금일수 중 90일을 본형에 산입한다.
Unofficial English translation
The appeal is dismissed. 90 days of the detention following the final appeal shall be credited to the principal sentence.
Provisions referred to
[1] 형법 제356조, 특정경제범죄가중처벌등에관한법률 제3조 [2] 특정경제범죄가중처벌등에관한법률 제3조
Read 2026-10-16 · Cross-read 2026-10-16. All quotes matched against the official text. The Chinese-character placeholders the court used for anonymised parties are given in their Korean readings, and parenthetical Chinese-character glosses are omitted.
Every entry is published only after all quotes have been matched character by character against the official text, and audited by an independent second reading from a different model family across all eight axes. Both agreed axes and text-grounded interpretive divergences are recorded openly. The ledger is a research record, not an assessment of the court or advice on any matter.
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