Open Decision Ledger · Economic crime
Calculation of the Amount of Loss in Occupational Breach of Trust Arising from Delayed Registration of a Maximum Amount Mortgage After a Secured Loan, and the Effect of an Error in Calculation
Translated from the Korean original. Read the Korean
Supreme Court, July 23, 2009, 2009Do3712 (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: 사기·공문서변조·변조공문서행사·부동산실권리자명의등기에관한법률위반·특정경제범죄가중처벌등에관한법률위반(배임)·특정경제범죄가중처벌등에관한법률위반(사기)·사문서위조·위조사문서행사·공정증서원본부실기재·부실기재공정증서원본행사·위증
Official text on the National Law Information Center
Question
Where an employee in charge of loans at a financial institution completed the registration of a maximum amount mortgage on an apartment only after the tenants had acquired the power to assert the lease against third parties, how is the financial institution's amount of loss calculated, and does an error in that calculation affect the judgment applying the Act on the Aggravated Punishment of Specific Economic Crimes?
Holding
The amount of loss is the shortfall by which the remaining collateral value, calculated by deducting from the value of the real estate at the time of the loan the lease deposits in respect of which the tenants had acquired the power to assert the lease against third parties, falls short of the loan amount. Although the court below erred in treating the entire loan amount as the amount of loss, the Supreme Court held that this did not affect the result of the judgment, because the correct amount likewise exceeded 500 million won and fell under Article 3 (1) 2 of the Act on the Aggravated Punishment of Specific Economic Crimes, and because it had no effect on sentencing either.
Points at issue, verbatim
금융기관의 대출담당 직원이 아파트를 담보로 대출을 해준 후 그 아파트에 임차인이 대항력을 갖춘 후에 그에 관한 근저당권설정등기를 마친 경우, 배임행위로 금융기관이 입은 손해액
Unofficial English translation
Where a loan officer of a financial institution extended a loan secured by an apartment and, after a tenant of that apartment acquired the effect of an opposing claim, completed the registration of establishment of a maximum amount mortgage in respect thereof, the amount of loss suffered by the financial institution by reason of the act of breach of trust
Disposition
Reversed and rendered by the Supreme Court Read from the decision
원심판결 중 피고인 1에 대한 판결 선고 전 구금일수 산입에 관한 부분을 파기한다.
Unofficial English translation
The part of the judgment of the court below concerning the crediting, as to Defendant 1, of days spent in detention prior to the pronouncement of judgment is reversed.
Form of the test
Elements stated Stated in the decision
부동산 가액에서 위 임대차보증금 액수를 공제한 잔액 즉 잔존 담보가치가 대출액수에 미달하는 때에 그 부족분에 해당하는 금액이라고 봄이 상당하다.
Unofficial English translation
It would be reasonable to regard it as the amount corresponding to such deficiency when the remaining amount obtained by deducting the amount of the aforesaid lease deposit from the value of the real estate, namely the residual value of the security, falls short of the amount of the loan.
Factors
- 담보대출에 의한 업무상 배임죄가 성립하는 경우 피해자의 손해액 산정을 위한
- 배임죄로 인한 손해액 또는 이득액 계산에 잘못이 있더라도
- 그 잘못이 그 법조항을 적용한 판결 결과에 영향을 미치는지 여부
- 그 아파트에 임차인이 대항력을 갖춘 후에 그에 관한 근저당권설정등기를 마친 경우
Unofficial English translation
• for the calculation of the victim's loss where the offense of occupational breach of trust is established through a secured loan
• even if there is an error in the calculation of the amount of loss or profit arising from the offense of breach of trust
• whether such error affects the outcome of the judgment to which the statutory provision was applied
• after a tenant of that apartment acquired the effect of an opposing claim, completed the registration of establishment of a maximum amount mortgage in respect thereof
Relation to precedent
Follows earlier decisions Stated in the decision
대법원 1989. 10. 24. 선고 89도641 판결
Unofficial English translation
Supreme Court Decision 89Do641 decided October 24, 1989
Decisions referred to
[2] 대법원 1989. 10. 24. 선고 89도641 판결(공1989, 1828), 대법원 1999. 4. 13. 선고 98도4022 판결(공1999상, 956) / [3] 대법원 2003. 10. 10. 선고 2003도3516 판결, 대법원 2006. 4. 27. 선고 2004도1130 판결
Burden of proof
Not addressed Not in the decision
Open question and revisit condition
Where the shortfall in remaining collateral value as correctly calculated does not reach the threshold amounts set out in each subparagraph of Article 3 (1) of the Act on the Aggravated Punishment of Specific Economic Crimes, or falls under a different subparagraph, how should the judgment of the court below be handled?
This reading is to be re-examined if the gain threshold under Article 3 (1) of the Act on the Aggravated Punishment of Specific Economic Crimes is amended, or if a subsequent Supreme Court decision on the calculation of the amount of loss in breach of trust arising from secured loans is rendered.
Cross-family AI independent reading & axis check
7 of 8 axes matched GPT-6 Astra (OpenAI, codex CLI) · 2026-10-16
When compared with an independent reading by another AI series (GPT-6 Astra), which read only the original text without seeing the first reading, 7 of the 8 axes agreed, and the readings diverged on the eighth axis (Open question and revisit condition).
Axis 8 (Open question and revisit condition): Primary “Where the shortfall in remaining collateral value as correctly calculated does not reach the threshold amounts set out in each subparagraph of Article 3 (1) of the Act on the Aggravated Punishment of Specific Economic Crimes, or falls under a different subparagraph, how should the judgment of the court below be handled?” vs Independent “Even if the corrected amount of loss falls within the same aggravated punishment range, must the judgment of the court below be reversed where it may affect sentencing?”
The first reading asks about the case in which the corrected amount of loss falls outside the aggravated punishment range, whereas the independent reading asks about the case in which, even within the same range, it affects sentencing.
금융기관의 대출담당 직원이 아파트를 담보로 대출을 해준 후 그 아파트에 임차인이 대항력을 갖춘 후에 그에 관한 근저당권설정등기를 마친 경우, 배임행위로 금융기관이 입은 손해액Raw 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 found Defendant 2 guilty of breach of trust for causing the delayed filing of the registration of the maximum amount mortgage and thereby allowing the tenants to acquire the power to assert the lease against third parties, and accepted the appraisal of the value of the real estate at the time of the loan on the basis of Kookmin Bank's real estate market prices, as well as the failure to deduct the principal and interest subsequently recovered. However, it treated this as breach of trust arising from an unsound loan and calculated the amount of loss as the entire loan amount. It also credited only part of the days during which Defendant 1 had been detained prior to the pronouncement of the judgment of the court below.
Supreme Court standard: The Supreme Court pointed out that the amount of loss must be regarded as the shortfall in remaining collateral value and that the method of calculation adopted by the court below was wrong, but held that this did not affect the result of the judgment, since the aggregate amount (approximately 532.95 million won) also exceeded 500 million won and the court below had pronounced a suspended sentence at the minimum statutory penalty. As for the days of detention, the Supreme Court held that they could not be sustained in light of Constitutional Court Decision 2007Hun-Ba25, reversed that portion, and rendered judgment directly, and dismissed all of the remaining final appeals.
Distinguishing conditions
- A case of an unsound loan made without collateral, in which the entire loan amount is evaluated as the amount of loss
- A case in which the registration of the maximum amount mortgage was completed before the tenants acquired the power to assert the lease against third parties, so that the lease deposits do not erode the value of the collateral
- A case in which the corrected amount of loss falls under a different aggravated punishment range under the Act or may affect sentencing
Record verification notes
Before asserting the same conclusion, check whether the data used to appraise the market value at the time of the loan was obtained by a reasonable method, whether the amount of the lease deposits in respect of which the power to assert the lease against third parties had arisen has been verified, and whether the corrected amount falls squarely within the same subparagraph of the provisions of the Act on the Aggravated Punishment of Specific Economic Crimes applied by the court below.
From the official text
Points at issue
[1] 담보대출에 의한 업무상 배임죄가 성립하는 경우 피해자의 손해액 산정을 위한 ‘담보물 가치’의 평가 방법 [2] 배임죄로 인한 손해액 또는 이득액 계산에 잘못이 있더라도 올바른 금액 또한 특정경제범죄 가중처벌 등에 관한 법률 제3조 제1항 각 호에 해당하는 경우, 그 잘못이 그 법조항을 적용한 판결 결과에 영향을 미치는지 여부(소극) [3] 금융기관의 대출담당 직원이 아파트를 담보로 대출을 해준 후 그 아파트에 임차인이 대항력을 갖춘 후에 그에 관한 근저당권설정등기를 마친 경우, 배임행위로 금융기관이 입은 손해액
Unofficial English translation
[1] Method of evaluating the 'value of the collateral' for the calculation of the victim's loss where the offense of occupational breach of trust is established through a secured loan / [2] Even if there is an error in the calculation of the amount of loss or profit arising from the offense of breach of trust, whether such error affects the outcome of the judgment to which each subparagraph of Article 3 (1) of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes was applied, where the correct amount likewise falls under those subparagraphs (negative) / [3] The amount of loss suffered by a financial institution by reason of an act of breach of trust where a loan officer of the financial institution extended a loan secured by an apartment and, after a tenant of that apartment acquired the effect of an opposing claim, completed the registration of establishment of a maximum amount mortgage in respect thereof
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
원심판결 중 피고인 1에 대한 판결 선고 전 구금일수 산입에 관한 부분을 파기한다. 피고인 2, 검사의 상고 및 나머지 원심판결에 대한 피고인 1의 상고를 모두 기각한다.
Unofficial English translation
The part of the judgment of the court below concerning the crediting, as to Defendant 1, of days spent in detention prior to the pronouncement of judgment is reversed. The final appeals of Defendant 2 and the prosecutor, and the final appeal of Defendant 1 as to the remainder of the judgment of the court below, are all dismissed.
Provisions referred to
[1] 형법 제355조 제2항, 제356조 [2] 형법 제355조 제2항, 특정경제범죄 가중처벌 등에 관한 법률 제3조 제1항 [3] 형법 제355조 제2항, 제356조
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.
Back to the ledger