Defendant shall be punished by a fine of KRW 7,000,000.

When the defendant fails to pay the above fine, the defendant shall be confined in a workhouse for the period converted by 50,000 won into one day.

In order to order the provisional payment of an amount equivalent to the above fine.

A. Error of mistake

As stated in the facts of the crime in the judgment below, it was true that some employees of the non-indicted 2 corporation operated by the defendant worked at the company for some of the business suspension dates on the application for employment maintenance support documents submitted to the employment support center under the control of the Korea Labor Agency. However, the defendant merely consented to the application for employment maintenance support documents by Non-indicted 1 (the non-indicted 1 in the judgment of the Supreme Court), who is an employee in charge of the management department at the time, to the effect that the non-indicted 1 (the non-indicted 1 was in exclusive charge of the above company's application for employment maintenance support documents), and did not know about the specific contents of the application for employment maintenance support documents and the non-indicted 1's temporary closure date and whether the non-indicted 2 corporation actually worked for the company on the temporary closure date (the defendant did not receive a detailed report or approval on the application details and the current status before and after the above application). It

Therefore, the judgment of the court below which found the defendant guilty of fraud is erroneous by misunderstanding the facts against the rules of evidence and affecting the judgment.

B. Unreasonable sentencing

The sentence of the court below is too unreasonable.

2. Determination

A. Ex officio determination

Before the judgment on the grounds for appeal by the defendant is made, in case where the money was acquired by deception through several times against the same victim in fraud, only a single crime of fraud is established if the criminal intent is the same and the method of crime is the same (see Supreme Court Decision 9Do4862, Feb. 11, 2002, etc.).

However, according to the records, the crime of this case was committed by the defendant in collusion with the non-indicted 1, etc., by deceiving the victim by the method of applying for the employment maintenance support payment for false contents based on the period of suspension different from the fact, and acquired the total amount of KRW 37,896,323 from January 2009 to July 2009 by the victim for the employment maintenance support payment for seven times. In light of the above legal principles, the crime of this case was committed by the defendant with a single criminal intent and with the same victim with the same criminal intent, and therefore, it is reasonable to deem that the crime of this case was committed a single crime of fraud, and it

Nevertheless, the court below determined that the above fraud by the defendant is a separate crime and has a substantive concurrent crime, and determined the applicable punishment within the scope of a limited term, and determined the applicable punishment. The court below erred by misapprehending the legal principles on the number of the crimes of fraud, thereby affecting the conclusion of the judgment. In this regard, the judgment of the court below cannot be maintained any more.

However, the defendant's assertion of misunderstanding of facts is still subject to the judgment of this court, and this is examined in the following.

B. Judgment on mistake of fact

The so-called joint principal offender is committing a crime jointly by two or more persons. In order to constitute a joint principal offender, it is necessary to commit a crime through functional control based on the joint principal intent as a subjective element (see, e.g., Supreme Court Decision 2008Do1274, Apr. 10, 2008). The conspiracy as a joint principal offender does not require any legal conviction, but is sufficient if there is an implied communication between the accomplices directly or indirectly with respect to the joint principal offender, and even if there is no direct evidence, it can be recognized by the circumstantial facts and empirical rules (see, e.g., Supreme Court Decision 2002Do868, Jun. 28, 2002).

(4) In light of such legal principles, the Defendant, who was aware of the facts of the instant case’s health room, the lower court’s judgment and the first instance court’s evidence lawfully adopted and examined the instant case’s case, i.e., (i) the Defendant had to work directly during the period of temporary closure so that it would not interfere with his/her work, and (ii) he/she had been engaged in his/her work at the time of temporary closure; (iii) Nonindicted 1 had been stated in the Defendant’s written application for temporary closure as stated in the lower court’s reasoning that it was difficult for the Defendant to fully submit the written application for temporary closure order to the effect that it would have been consistent with the Defendant’s statement at the time of temporary closure (No. 839,855 of the evidence record). Furthermore, Nonindicted 1 had been stated in the Defendant’s written application for temporary closure order to the effect that it was difficult for the Defendant to have prepared the written application for temporary closure order and its actual temporary closure order as stated in the Defendant’s written application for temporary closure order.

(On the other hand, the defendant argued to the effect that it is unjust to recognize that he obtained employment maintenance support payment to the above employees since he did not actually worked during the period of suspension of business in the case of some employees, such as the non-indicted 1, the non-indicted 5, the non-indicted 6, the non-indicted 7, and the non-indicted 8, since he did not work in the actual place during the period of suspension of business, he did not perform his duties. However, considering the above facts and the list of persons subject to suspension of business and the details of the suspension of business, the daily attendance status of the actual employees, the daily attendance status of the actual employees, and the empirical rule, it can be recognized that all the above employees worked in the company during some period of suspension of business, and therefore the above

3. Conclusion

Therefore, the defendant's assertion of mistake is without merit, but the judgment of the court below is reversed pursuant to Article 364 (2) of the Criminal Procedure Act without examining the defendant's assertion of unfair sentencing, and it is again decided as follows.

Articles 347(1) and 30 (General Provisions of the Criminal Act, Selection of Fine)

1. Detention in a workhouse;

Articles 70 and 69(2) of the Criminal Act

1. Order of provisional payment;

Article 334(1) of the Criminal Procedure Act

Judges Lee Jin-hee (Presiding Judge)

1) The defendant asserts that he denies the authenticity of the interrogation protocol of the defendant prepared by the prosecution against the defendant in the first instance trial. However, although the declaration of consent as provided in Article 318 of the Criminal Procedure Act may be revoked or withdrawn before the completion of the examination of evidence, the consent as provided in the first instance trial cannot be revoked or withdrawn after the examination of evidence is completed, so even if the declaration of consent is revoked or withdrawn after the examination of evidence is completed, the admissibility of evidence already acquired before the cancellation or withdrawal cannot be lost (see, e.g., Supreme Court Decisions 9Do2029, Aug. 20, 199; 2004Do2611, Jun. 25, 2004).

2) Meanwhile, insofar as the protocol of interrogation of Nonindicted Party 1 prepared in accordance with due process and method, and it is recognized that Nonindicted Party 1 appeared as a witness at the third trial date in the court of original instance and the above protocol was the same as his/her statement, the admissibility of evidence is recognized. [In cases where the Defendant acknowledged the authenticity and voluntariness of the protocol of interrogation of the Defendant prepared by the public prosecutor, even if he/she subsequently made a statement or submitted a document, the contents of the protocol, the developments leading up to the preparation of the protocol, and the statement related to the Defendant’s crime in the court, etc., in light of the overall circumstances, such as the credibility of the first statement recognized by the public prosecutor, the protocol of interrogation is still admissible (see, e.g., Supreme Court Decisions 9Do484, Apr. 27, 2001; 2004Do805, Apr. 23, 2004); however, Nonindicted Party 1 admitted the credibility of the protocol of interrogation of Nonindicted Party 1’s suspect as its initial statement.

3) In order to supplement the benefits of the management staff who have been reduced by 30% at the time of the prosecutorial investigation, the Defendant and Nonindicted Party 1 stated that they did not take measures to cancel the application through the report on the change of the plan for employment maintenance measures, etc.

4) Although Nonindicted 4, who is an employee of the above company, was not clear, it was stated in the court of the court below that the Defendant instructed or requested the withdrawal of the above measures, even if there was an urgent need for the executive officer to suspend the business.

(5) Although Nonindicted 1 applied for the suspension of 10 days in January 2009 at the time of the prosecutor’s investigation, Nonindicted 1 stated that he worked and worked for 5 days during the period of suspension, as well as that of other employees indicated in the crime sight table as indicated in the judgment of the court below, including Nonindicted 5, Nonindicted 6, and Nonindicted 7, etc. (Nonindicted 1 stated in the court below to the effect that he was in charge of an urgent work after attending the company during the period of suspension).

6) Furthermore, even if there are some errors in the number of days for which the said employees had actually worked in the company during the period of suspension, insofar as the entire amount of the employment maintenance support payment for the Defendant issued to the Defendant by the victim through deception as stated by the lower court is obtained by deception, such circumstance alone alone cannot be deemed as not supporting the liability for the crime of fraud by the Defendant.