Open Decision Ledger · Economic crime
Mutual Savings Bank: Establishment of the Crime of Occupational Breach of Trust for Credit Loans Exceeding the Single-Borrower Lending Limit and Aggregation of Gains Under a Single Comprehensive Offense
Translated from the Korean original. Read the Korean
Supreme Court, Aug. 18, 2011, 2009Do7813 (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: 특정 경제 범죄 가중 처벌등에 관한 법률 위반(배임)·상호 저축 은행법 위반·주식회사의 외부 감사에 관한 법률 위반·업무상 배임
Official text on the National Law Information Center
Question
Where an executive of a mutual savings bank approved credit loans exceeding the single-borrower lending limit without reviewing an appropriate lending limit or securing collateral, does the crime of occupational breach of trust arise, and may the gains from the several loans be aggregated to apply the Act on the Aggravated Punishment, etc. of Specific Economic Crimes?
Holding
The mere fact of exceeding the lending limit is in principle not a breach of trust, but where the ability to repay the debt or the collateral is inadequate so that a problem arises in the recovery of the loan claims, a loss in property is recognized, and even if part of the loan monies is recovered afterwards, this does not affect the establishment of the offense of breach of trust. The Supreme Court agreed with the court below, which treated each loan, made in the same manner based on a single criminal intent, as a single comprehensive offense and aggregated the gains.
Points at issue, verbatim
동일인 대출한도 제한규정을 위반하여 초과대출을 한 사실만으로 업무상배임죄가 성립하는지 여부(원칙적 소극) 및 동일인 대출한도 초과대출행위가 업무상배임죄를 구성하는 경우
Unofficial English translation
Whether the crime of occupational breach of trust is established merely by the fact that one made loans exceeding the lending limit for a single person in violation of the restrictions on the lending limit for a single person (negative in principle) and, where the act of making loans exceeding the lending limit for a single person constitutes the crime of occupational breach of trust, in the case where
Disposition
Dismissed Stated in the decision
상고를 각 기각한다.
Unofficial English translation
The appeals are dismissed.
Form of the test
Existing test applied Stated in the decision
피고인들에게 업무상배임죄를 인정한 원심판단을 수긍한 사례
Unofficial English translation
A case in which the court below's judgment recognizing the crime of occupational breach of trust with respect to the defendants was affirmed
Factors
- 갑 주식회사의 신용상태 등을 감안한 적정 대출한도를 검토하지 아니하고
- 별다른 물적 담보도 확보하지 아니한 채
- 수개의 업무상 배임행위가 포괄일죄에 해당하기 위한 요건
- 업무상배임죄의 구성요건 중
Unofficial English translation
• without reviewing an appropriate lending limit in consideration of Company A's credit status or the like
• without securing any particular collateral
• Requirements for several acts of occupational breach of trust to constitute a single comprehensive offense
• among the constituent elements of the crime of occupational breach of trust
Relation to precedent
Follows earlier decisions Stated in the decision
대법원 2008. 6. 19. 선고 2006도4876 전원합의체 판결
Unofficial English translation
Supreme Court en banc judgment 2006Do4876 decided June 19, 2008
Decisions referred to
[1] 대법원 2008. 6. 19. 선고 2006도4876 전원합의체 판결(공2008하, 1181) / [2] 대법원 2004. 7. 22. 선고 2002도4229 판결(공2004하, 1480), 대법원 2006. 11. 9. 선고 2004도7027 판결(공2006하, 2115) / [4] 대법원 1989. 6. 13. 선고 89도582 판결(공1989, 1103), 대법원 2011. 7. 28. 선고 2009도8265 판결(공2011하, 1865) / [5] 대법원 2004. 4. 28. 선고 2004도927 판결, 대법원 2004. 7. 9. 선고 2004도810 판결(공2004하, 1382) / [6] 대법원 2002. 7. 22. 선고 2002도1696 판결(공2002하, 2100)
Burden of proof
Not addressed Not in the decision
Open question and revisit condition
Where there was some review, at the time of the loan, of certain collateral or of the credit of the construction company, where is the boundary for finding that a problem exists in the recovery of the loan claims?
If the provisions on the lending limit for a single borrower under the Mutual Savings Banks Act, or the en banc legal principle concerning the determination of loss in property for the offense of breach of trust, changes, we will re-examine this reading.
Cross-family AI independent reading & axis check
7 of 8 axes matched GPT-6 Astra (OpenAI, codex CLI) · 2026-10-16
In comparison with an independent reading by another AI model (GPT-6 Astra), which read only the original text without seeing the primary reading, 7 of the 8 axes agreed, 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 general requirements for the offense of breach of trust and single comprehensive offense and specific examples of loan approvals, the primary reading may be classified as centering on application to the facts, whereas the independent reading may be classified as centering on elements stated.
동일인 대출한도 제한규정을 위반하여 초과대출을 한 사실만으로 업무상배임죄가 성립하는지 여부(원칙적 소극) 및 동일인 대출한도 초과대출행위가 업무상배임죄를 구성하는 경우Raw 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 2009No117) found a breach of duty and intent to commit breach of trust, in view of the circumstances that each loan was a promissory note discount loan substantially taken by the construction contractor Non-indicted 1 Co., Ltd. in the names of the project operators, and that the defendants approved credit loans totaling 10 billion won in the names of 11 project operators without any review of an appropriate lending limit or securing of collateral; it aggregated the gains of each act of breach of trust and applied Article 3, paragraph (1), subparagraph 1 of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes. As for Defendant 2, it held that he caused loss to the housing cooperative by receiving 200 million won in the name of a success fee, having received only a formal written reply.
Supreme Court standard: The Supreme Court agreed with the determination of the court below as it stood. It held that, inasmuch as the risk of being unable to recover the loan monies had arisen, the fact that 8 billion won was recovered afterwards did not affect the establishment of the offense of breach of trust, and that each loan was based on a single criminal intent, with the same victim, beneficiary, and modus operandi, so that they constituted a single comprehensive offense, and that the aggregation of gains was therefore proper; it also upheld the finding of a breach of duty by Defendant 2.
Distinguishing conditions
- Where, notwithstanding that the lending limit was exceeded, it may be considered that there is no problem in recovering the loan claims in view of the borrower's financial condition, business prospects, and the value of the collateral provided
- Where each loan is not substantially based on the credit of the same borrower, or where the criminal intent, victim, and beneficiary differ so that they cannot be tied together as a single comprehensive offense
- Where, in the course of loan approval, ordinary screening procedures, such as review of an appropriate lending limit and securing of collateral, were substantially carried out
Record verification notes
Before asserting the same conclusion, it must first be confirmed from the Records whether the borrower's ability to repay and the value of the collateral were in fact inadequate at the time of the loan, and whether the several loans were made pursuant to a single criminal intent and in the same manner.
From the official text
Points at issue
[1] 동일인 대출한도 제한규정을 위반하여 초과대출을 한 사실만으로 업무상배임죄가 성립하는지 여부(원칙적 소극) 및 동일인 대출한도 초과대출행위가 업무상배임죄를 구성하는 경우 [2] 배임죄에서 ‘재산상의 손해를 가한 때’의 의미 [3] 상호저축은행 임원인 피고인들이 아파트 시공업체인 갑 주식회사의 신용상태 등을 감안한 적정 대출한도를 검토하지 아니하고 별다른 물적 담보도 확보하지 아니한 채, 실질적으로 갑 회사가 아파트 건축사업 시행사들 명의로 받은 신용대출을 승인해 준 사안에서, 피고인들에게 업무상배임죄를 인정한 원심판단을 수긍한 사례 [4] 특정경제범죄 가중처벌 등에 관한 법률 제3조 제1항에서 정한 ‘이득액’의 의미 [5] 수개의 업무상 배임행위가 포괄일죄에 해당하기 위한 요건 [6] 업무상배임죄의 구성요건 중 ‘임무에 위배하는 행위’의 의미
Unofficial English translation
[1] Whether the crime of occupational breach of trust is established merely by the fact that one made loans exceeding the lending limit for a single person in violation of the restrictions on the lending limit for a single person (negative in principle) and, where the act of making loans exceeding the lending limit for a single person constitutes the crime of occupational breach of trust, in the case where [2] The meaning of 'the time when a pecuniary loss is inflicted' in the offense of breach of trust [3] A case in which, where the defendants, executives of a mutual savings bank, approved credit loans that Company A, an apartment construction company, in substance received in the names of the operators of apartment construction projects, without reviewing an appropriate lending limit in consideration of Company A's credit status or the like and without securing any particular collateral, the court below's judgment recognizing the crime of occupational breach of trust with respect to the defendants was affirmed [4] The meaning of 'the amount of gain' as provided in paragraph (1) of Article 3 of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes [5] Requirements for several acts of occupational breach of trust to constitute a single comprehensive offense [6] The meaning of 'an act contrary to one's duties' among the constituent elements of the crime of occupational breach of trust
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 각 기각한다.
Unofficial English translation
The appeals are dismissed.
Provisions referred to
[1] 형법 제355조 제2항, 제356조, 구 상호저축은행법(2007. 7. 19. 법률 제8522호로 개정되기 전의 것) 제12조 제1항, 제39조 제3항 제4호의2(현행 제39조 제4항 제6호 참조) [2] 형법 제355조 제2항 [3] 형법 제30조, 제355조 제2항, 제356조, 특정경제범죄 가중처벌 등에 관한 법률 제3조 제1항 제1호 [4] 특정경제범죄 가중처벌 등에 관한 법률 제3조 제1항 [5] 형법 제37조, 제355조 제2항, 제356조 [6] 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.
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