사기미수
All appeals by the Defendants are dismissed.
1. The summary of the grounds for appeal lies in a tort damage claim against the victim J. However, a certified judicial scrivener who requested the preparation, etc. of an application for each of the instant payment orders from the Defendants constituted a loan claim, not a damage claim, due to the misjudgmentation of legal evaluation. There was no intent to deceiving the court to acquire the money of the victim by deceiving the court.
Nevertheless, the judgment of the court below which found the Defendants guilty of the facts charged is erroneous by misunderstanding the facts or misunderstanding the legal principles.
2. Determination
A. The purpose of the litigation fraud is to induce a court to defraud a third party’s property by deceiving the court, and to recognize it as a crime of fraud is insufficient only to the effect that there is no right as alleged at the time of the filing of the lawsuit, and the recognition of deceiving the court by means of false assertion and proof is required even if it is well known that there is no right to claim.
On the other hand, deceiving the court where there is an intentional intent of deceiving the court by applying for a payment order with false content would be a means of deception if the allegations by the parties are sufficient to reach the court even if the false evidence is not used (see Supreme Court Decision 2002Do4151, Jun. 24, 2004). (b) The following circumstances revealed by the evidence duly adopted and investigated by the court below regarding the instant case, namely, ① Defendant A and E operate the oil wholesale business with the trade name of “G” from April 2012 to the same business, and specifically, Defendant A operated the oil supply business by way of supplying oil to the construction site, and the profits are equally allocated among them; ② Defendant A and its interest accounting officer are entitled to receive the oil supply amount under the name of the NB account.