[2] Whether the crime of fraud in a lawsuit is established in a case where a person asserts a false title different from the previous one, which was alleged in the previous one while submitting the fabricated evidence in the court while a civil lawsuit is in progress with a specific title (affirmative)

[3] The case reversing the judgment of the court below on the ground that Article 37 of the amended Criminal Act of the Criminal Code promulgated and enforced by Act No. 7077 of Jan. 204 should be applied to the punishment of concurrent crimes

[2] In a case where the defendant submitted a falsified title different from the previous one in the course of a civil lawsuit based on a specific title while submitting a fabricated evidence in the court, the recognition of the previous specific title was not confirmed at that time. If the previous specific title is rejected, it is possible to obtain a judgment of winning the defendant by deceiving the court by means of fabricated evidence and obtaining a false title. Thus, even if the court subsequently rendered a judgment in favor of the defendant by recognizing the previous specific title, such act of the defendant constitutes the commencement of the execution of the fraud in the lawsuit, barring special circumstances.

[3] The case reversing the judgment of the court below on the ground that Article 37 of the amended Criminal Act of the Criminal Code promulgated and enforced by Act No. 7077 of Jan. 204 should be applied to the punishment of concurrent crimes

The court below acknowledged facts based on the adopted evidence and found the defendant guilty of the facts charged as to the fabrication and uttering of private documents. According to the records, the judgment of the court below is just and acceptable, and there is no violation of rules of experience or rules of evidence.

2. As to fraud

A fraud in a lawsuit is a crime of acquiring the other party's property or property benefits by deceiving the court and obtaining a judgment favorable to himself/herself. If a defendant is found guilty, any person would have any choice to assert favorable claims against himself/herself and bring about the chilling of the civil trial system that can receive remedy through a lawsuit. Thus, unless it is evident that a crime is constituted as the case where it is recognized that the defendant objectively shows different arguments in the lawsuit and that he/she clearly expresses false arguments or that he/she intends to manipulates evidence, he/she shall not be found guilty unless it is evident that the crime is established, and it does not constitute fraud merely mean that the act of falsely recognizing facts or that he/she believed that he/she has a right that does not exist due to any mistake in legal assessment does not constitute a crime. Even if there is a somewhat different arguments in the lawsuit, it cannot be deemed that there is a criminal intent to commit fraud. In addition, the manipulation of evidence in the lawsuit fraud refers to the act of creating a false disposal document, or inducing testimony of a false witness, thereby inducing objective and third party evidence (see Supreme Court Decision 2004Do73737.).

In addition, in a case where the defendant submitted a false title different from the previous one in the course of a civil lawsuit with a specific title while submitting the evidence organized in the court while the defendant is proceeding with a specific title, the recognition of the previous title has not become final and conclusive. If the previous title is rejected, it is possible to obtain a judgment in favor of the defendant by deceiving the court in accordance with the fabricated evidence and obtaining a false title. Thus, even if the court subsequently rendered a judgment in favor of the defendant by recognizing the previous specific title, such act of the defendant constitutes the commencement of the execution of the litigation fraud, barring special circumstances.

After recognizing the facts of the judgment, the court below held that the defendant's arbitrary statement of payment stating the phrase "joint and several guarantee" in front of "In order to prove it as a joint and several guarantee liability for the defendant on March 13, 2001, while conducting a civil lawsuit seeking payment of KRW 20 million under the custody money payment agreement against Kim Tae-won, was an act commencing the execution of lawsuit fraud in order to induce the court to gain property profits, but since the defendant withdrawn his claim as the cause of the claim on May 24, 2002, the judgment of the court below was just and acceptable in light of the legal principles and records of the lawsuit fraud, and there were no errors in the misapprehension of legal principles as to the lawsuit fraud.

3. Ex officio determination

On the other hand, the court below dismissed the defendant's appeal as to the forgery and uttering of private document, and accepted part of the prosecutor's appeal as to the fraud, and recognized the defendant's appeal as to the crime of attempted fraud, and thus, the decision of the court of first instance became final and conclusive, and thus, the crime of attempted fraud is not related to the forgery and uttering of private document which the court of first instance found guilty and the crime of forging and uttering of private document committed prior to the final and conclusive judgment of the fine under the former part of Article 37 of the Criminal Act.

However, among the criminal laws promulgated and enforced by Act No. 707 of Jan. 204, "the crime for which judgment has become final and conclusive" in the latter part of Article 37 of the Criminal Act was amended to "the crime for which judgment has become final and conclusive" under the amended Act. Although the above amended Act does not have any special transitional provision, Article 37 of the Criminal Act does not provide for the provision for the aggravated punishment for concurrent crimes, it would be favorable for the defendant to impose a sentence more than that for the sentence of two concurrent crimes. Therefore, the above amended Act would be applied by analogy of Article 1 (2) of the Criminal Act in the absence of special circumstances, such as the application of the above amended Act would rather be unfavorable to the defendant, and it shall be deemed that it is also applied to a case where a fine and a judgment to be sentenced to minor punishment has become final and conclusive before the above amended Act enters into force.

However, there is no circumstance to see that applying the above revised law in this case would rather be disadvantageous to the defendant. Thus, the above revised law should be applied to the defendant, and as such, each of the crimes committed by the defendant before and after the decision of the fine became final, all of the crimes committed by the defendant are concurrent crimes under the former part of Article 37 of the Criminal Act, and a single punishment should be imposed.

4. Conclusion

Therefore, the judgment below is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Han-gu (Presiding Justice)