[1] The meaning of "the grant of subsidies" under Article 40 of the Act on the Budgeting and Management of Subsidies or by other unlawful means

[2] The case holding that where the defendant submitted to the competent authority a written contract for construction works whose construction amount is excessively entered in the application for subsidies and received subsidies calculated on the basis thereof, the defendant received subsidies by false application or other unlawful means

[1] Article 40 of the Act on the Budgeting and Management of Subsidies / [2] Article 40 of the Act

[1] Supreme Court Decision 99Do4101 decided Jan. 5, 2001 (Gong2001Sang, 469)

Defendant

Defendant

Attorney Yang Ho-ok

Ulsan District Court Decision 2004No692 decided Jan. 7, 2005

The appeal is dismissed.

We examine the grounds of appeal.

1. Article 40 of the Act on the Budgeting and Management of Subsidies (hereinafter referred to as the "Act") provides that "any person who has received subsidies or indirect subsidies by false application or other unlawful means, or any person who has knowingly received subsidies or indirect subsidies, shall be punished by imprisonment for not more than five years, or by a fine not exceeding five million won," and "the false application or other unlawful means" refers to the affirmative and passive acts that are deemed unfair by deceptive means or other acts that may affect the decision-making on the grant of subsidies even though they cannot receive subsidies under the Act in normal procedures, and "the case of receiving subsidies by unlawful means" refers not only to the case of receiving subsidies for affairs or projects that are not subject to the grant of subsidies, but also to the case of receiving subsidies in excess of the amount to be granted to the relevant projects, etc. (see Supreme Court Decision 9Do4101, Jan. 5, 2001).

The court below, based on its adopted evidence, found the defendant guilty of receiving the subsidy calculated on the basis of the construction cost stated in the above false construction contract, and found the defendant guilty of receiving the subsidy by false application or other unlawful means. In light of the above legal principles and records, the court below's aforementioned recognition and determination are justified, and it did not err in the misapprehension of the rules of evidence and the misapprehension of legal principles as to the interpretation and application of Article 40 of the Act, as alleged in the grounds for appeal.

In addition, the subsidy of this case is limited to facilities, such as low temperature storage, and it is not subject to the purchase of the site, and therefore, it cannot be deemed that the purchase cost of the building site or acquisition tax therefrom constitutes self-charges, and in light of the fact that only a part of it was paid before the application for the subsidy of this case was made, it cannot be deemed that the content of the above contract conforms to the substantive relationship. Therefore, the appeal on this premise cannot be accepted.

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

Justices Jack-dam (Presiding Justice)