A defendant shall be punished by imprisonment for one year.

A. Although the fact that the borrower could have received the original subsidy in calculating the amount of fraud by misunderstanding the legal principles should be excluded, the judgment of the court below which calculated the amount of fraud including all of the subsidies is erroneous by misunderstanding the legal principles.

B. The punishment of the lower court’s unfair sentencing (one year and six months of imprisonment) is too unreasonable.

2. Before examining the reasoning for ex officio appeal, the record reveals that the Defendant was sentenced to a suspended sentence of two years on November 30, 2016 to a crime of violating the Punishment of Tax Evaders Act on November 30, 2016 (see, e.g., Changwon District Court Decision 2016Da3341). Each of the instant offenses committed by the Defendant is in the concurrent relationship between the crime for which the said judgment became final and the crime under Article 37 of the Criminal Act and the crime under Article 39(1) of the Criminal Act, and thus, a sentence is determined in consideration of equity with the case where the judgment is rendered at the same time pursuant to Article 39(1) of the Criminal Act. In this regard, the lower judgment is no longer maintained.

However, despite the above reasons for reversal ex officio, the defendant's assertion of misunderstanding the legal principles is still subject to the judgment of this court, and this is examined.

3. We examine the judgment of the court below as to the assertion of misunderstanding of legal principles, and in the case of receiving excessive subsidies than the original payment through deception, such act is judged to be unacceptable as a means of exercise of rights in light of social common sense, and the whole act is deemed to be unlawful. Thus, unless there are special circumstances, the whole amount of subsidies granted shall be deemed to be crime of fraud (see, e.g., Supreme Court Decisions 2002Do5085, Dec. 24, 2002; 2008Do4665, May 28, 2009; 88Do2136, Jan. 31, 1989; 2006Do7470, Jan. 25, 2007; 2007). Therefore, the judgment of the court below that the borrower received the full amount of subsidies shall be justified, and the defendant's assertion is without merit.