Whether fraud constitutes a crime of fraud is established in the case where there is deception on who the user of the road site is the actual user and there is permission by the management agency.

Article 40 of the Road Act, it is interpreted that the purpose of the operation of Article 24 of the Enforcement Decree of the Road Act can only be determined by the discretion of the management agency, so even if the actual user of the road site committed the deception of the defendant with respect to who is the user, this would be a reference for the determination of the permission to occupy and use, and it cannot be readily concluded that the permission to occupy and use was made based on the defendant'

Article 347 of the Criminal Act, Article 40 of the Road Act, Article 24 of the Enforcement Decree of the Road Act

Defendant

Prosecutor

Daejeon District Court Decision 72No206 delivered on January 9, 1974

The appeal is dismissed.

The prosecutor's grounds of appeal are examined.

In light of the meaning of Article 24 of the Enforcement Decree of the Road Act, even if the road management agency grants permission to the most qualified person by conducting a basic survey, it is interpreted that it can decide the permission by the discretion of the management agency without going through whether or not the person who actually uses the road is the person who actually uses the road. In this case, even if there is a deceptive act of the defendant as to who is the actual user of the road site, it is only one reference for the decision of the management agency to grant permission to the non-indicted 1, and it cannot be concluded that the permission was granted by the defendant based on the defendant's deception. As such, the decision of the court below that the defendant's act was not an act constituting a crime of fraud is just, and it cannot be deemed that there was an error of law by misapprehending the legal principles of discretion under Article 40 of the Road Act, as pointed out in this paper.

Therefore, the appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Yoon-Jeng (Presiding Justice)