Open Decision Ledger · Economic crime
Number of Offenses for Improper Loans to Different Counterparties, Probative Value of the Trial Record, and Oral Amendment of the Indictment
Translated from the Korean original. Read the Korean
Supreme Court, Oct. 28, 2005, 2005Do5996 (judgment)
No holding summary · checked against points at issue. The official text publishes no summary of the holding for this decision. The quotation and factors in this record are copied verbatim from the points at issue; the evidence for each axis is taken from the points at issue, the order and the reasons.
Case name: 특정경제범죄가중처벌등에관한법률위반(배임)
Official text on the National Law Information Center
Question
Do several acts of improper lending, carried out independently on different dates and with security provided separately, constitute offenses in substantive concurrence rather than a single comprehensive offense?
Holding
For several acts of occupational breach of trust to constitute a single comprehensive offense, the protected legal interest must be single, the manner of the crime must be identical, and they must be a series of acts based on a single intent. As the improper loans to separate corporations were made independently on different dates and security was provided separately, the Supreme Court found tenable the holding of the court below that they constituted multiple offenses based on distinct intents, and thus were offenses in substantive concurrence.
Points at issue, verbatim
피고인의 각 부당대출 행위가 서로 다른 일자에 독립하여 이루어졌고, 담보도 별도로 제공되었다면 이는 포괄일죄가 아니라 실체적 경합범에 해당한다고 한 원심의 판단을 수긍한 사례
Unofficial English translation
A case affirming the judgment of the court below that, where the defendant's respective unfair loan acts were carried out independently on different dates and collateral was separately provided, this constitutes not a single comprehensive offense but substantive concurrence
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
위 법리에 비추어 볼 때 포괄일죄에 해당하지 아니하고 수개의 죄에 해당한다고 할 것이다
Unofficial English translation
In light of the foregoing legal principle, it cannot be regarded as a single comprehensive offense but must be regarded as several offenses
Factors
- 배임죄에서 '재산상의 손해를 가한 때'의 의미
- 공판조서의 증명력 및 구술에 의한 공소장변경이 가능한 경우
- 포괄일죄로 기소한 것을 공소장 변경없이 실체적 경합범으로 처단할 수 있는지 여부
- 수개의 업무상 배임행위가 포괄일죄에 해당하기 위한 요건
Unofficial English translation
• Meaning of 'causing pecuniary loss' in the offense of breach of trust
• Probative value of trial records and cases in which amendment of the indictment by oral statement is possible
• Whether a case prosecuted as a single comprehensive offense may be adjudicated as substantive concurrence without amending the indictment
• Requirements for several acts of occupational breach of trust to constitute a single comprehensive offense
Relation to precedent
Follows earlier decisions Stated in the decision
대법원 1997. 9. 26. 선고 97도1469 판결
Unofficial English translation
Supreme Court Decision 97Do1469 decided September 26, 1997
Decisions referred to
[1] 대법원 2003. 2. 11. 선고 2002도5679 판결(공2003상, 851) /[2][3] 대법원 1995. 4. 14. 선고 95도110 판결(공1995상, 1914) /[3] 대법원 1996. 4. 9. 선고 96도173 판결(공1996상, 1477) /[4] 대법원 1987. 5. 26. 선고, 87도527 판결(공1987, 1111) /[5] 대법원 1997. 9. 26. 선고 97도1469 판결(공1997하, 3342)
Burden of proof
Not addressed Not in the decision
Open question and revisit condition
Where multiple improper loans were made to the same lending counterparty, where are the boundaries for viewing them as a series of acts based on a single intent?
If Article 56 of the Criminal Procedure Act, concerning the probative value of the trial record, or Article 142 of the Regulations on Criminal Procedure, setting the requirements for oral amendment of the indictment, is amended, this reading will be checked again.
Cross-family AI independent reading & axis check
7 of 8 axes matched GPT-6 Astra (OpenAI, codex CLI) · 2026-10-16
Compared with the independent reading of another AI line (GPT-6 Astra), which read only the original text without seeing the primary reading, 7 of the 8 axes matched, and the readings diverged on the fourth axis (Form of the test).
Axis 4 (Form of the test): Primary “Existing test applied” vs Independent “Elements stated”
Because the Holdings contain both the general elements of a single comprehensive offense and a case applying the loan dates and the independence of the security, the primary reading may emphasize the concrete application, while the independent reading may emphasize the statement of elements.
수개의 업무상 배임행위가 포괄일죄에 해당하기 위한 요건Raw 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 (Busan High Court, Case No. 2005No233) found that the defendant, while serving as head of the Yangsan branch office, extended bill-discounting loans of 15,513,391,206 won to Non-indicted 1 and 7,856,108,794 won to Non-indicted 2, thereby causing losses of 13,913,391,206 won and 2,286,108,794 won respectively; and, after an oral amendment of the indictment at the fourth trial hearing, punished the two offenses of improper lending not as a single comprehensive offense but as offenses in substantive concurrence.
Supreme Court standard: The Supreme Court, citing the legal principle that once the risk of loss has been created, the subsequent acquisition of security or recovery of the loss has no effect on the establishment of the offense of breach of trust, the legal principle that a trial record is proven as stated unless it contains an evident error, and the legal principle that where only the assessment of the number of offenses differs, there is no violation of the principle that no adjudication may be had without a charge even absent an amendment of the indictment, found tenable all of the holdings of the court below, and also rejected the contention that Article 56 of the Criminal Procedure Act is unconstitutional.
Distinguishing conditions
- Where the lending counterparty is the same, or is in substance a single business entity, and repeated loans were made under a single plan
- Where the oral amendment of the indictment was made at a trial the defendant did not attend, or was made to the disadvantage of the defendant and without consent
- Where the entries in the trial record are confirmed as an evident error on the face of the litigation record
Record verification notes
Before asserting substantive concurrence, one must first confirm whether each loan was made independently, as separate corporations, separate agreements, separate security, and different dates, or whether there are circumstances warranting viewing them as a series of acts based on a single intent.
From the official text
Points at issue
[1] 배임죄에서 '재산상의 손해를 가한 때'의 의미 [2] 공판조서의 증명력에 관한 규정인 형사소송법 제56조가 위헌인지 여부(소극) [3] 공판조서의 증명력 및 구술에 의한 공소장변경이 가능한 경우 [4] 포괄일죄로 기소한 것을 공소장 변경없이 실체적 경합범으로 처단할 수 있는지 여부(적극) [5] 수개의 업무상 배임행위가 포괄일죄에 해당하기 위한 요건 [6] 피고인의 각 부당대출 행위가 서로 다른 일자에 독립하여 이루어졌고, 담보도 별도로 제공되었다면 이는 포괄일죄가 아니라 실체적 경합범에 해당한다고 한 원심의 판단을 수긍한 사례
Unofficial English translation
[1] Meaning of 'causing pecuniary loss' in the offense of breach of trust [2] Whether Article 56 of the Criminal Procedure Act, a provision on the probative value of trial records, is unconstitutional (negative) [3] Probative value of trial records and cases in which amendment of the indictment by oral statement is possible [4] Whether a case prosecuted as a single comprehensive offense may be adjudicated as substantive concurrence without amending the indictment (affirmative) [5] Requirements for several acts of occupational breach of trust to constitute a single comprehensive offense [6] A case affirming the judgment of the court below that, where the defendant's respective unfair loan acts were carried out independently on different dates and collateral was separately provided, this constitutes not a single comprehensive offense but substantive concurrence
Summary of the holding
The official text publishes no summary of the holding for this decision. The quotation and factors in this record are copied verbatim from the points at issue; the evidence for each axis is taken from the points at issue, the order and the reasons.
Order
상고를 기각한다. 상고 후의 구금일수 중 80일을 본형에 산입한다.
Unofficial English translation
The appeal is dismissed. 80 days of the detention after the final appeal shall be counted toward the sentence.
Provisions referred to
[1] 형법 제355조 제2항 [2] 형사소송법 제56조, 헌법 제11조, 제37조 제2항 [3] 형사소송법 제56조, 제298조, 형사소송규칙 제142조 [4] 형사소송법 제298조 [5] 형법 제37조, 제356조 [6] 형법 제37조, 제356조
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