[1] The meaning of “litigation” and the matters to be considered when recognizing the crime of fraud in a lawsuit

[2] In a case where the Defendant, the representative director of the Company A, was employed in Company B on November 201, and filed a lawsuit claiming restitution of unjust enrichment against the retirement reserve funds already paid, including the comprehensive daily pay, from December 11, 2011 to April 11, 2015, and submitted as evidentiary materials by altering the amount stated in the daily pay column of the labor contract as of May 1, 2015, the case holding that the lower court erred by misapprehending the legal doctrine on fraudulent acts by misapprehending the legal doctrine on the part of the Defendant, on the grounds that the retirement reserve funds paid to the Company B after retirement from the company as seen above, with advice that the retirement reserve funds paid to the Company B have no validity as retirement allowances, and thus, the Defendant filed a lawsuit claiming restitution of unjust enrichment, on the grounds that the exercise of legitimate exercise of rights, etc.

[1] A litigation fraud is an offense involving deceiving the court to obtain a favorable judgment for himself/herself, thereby acquiring the other party's property or pecuniary advantage. The punishment of it is inevitable to inevitably lead to the chilling of the civil trial system that anyone can make an assertion favorable to himself/herself and receive remedy through a lawsuit. Thus, except in cases where the defendant has recognized the crime, it shall not be easily found guilty unless there is any trace that the assertion in the lawsuit is objectively apparent or that the defendant has been aware that his/her claim in the lawsuit is clearly false, or that there is any trace that the defendant attempted to manipulate the evidence. In addition, for the establishment of the litigation fraud, it is insufficient to say that there is no claim as alleged at the time of the lawsuit fraud, and it is necessary to recognize that the court is deceiving by a false assertion with the knowledge that there is no claim in the lawsuit fraud, and that the act of filing a lawsuit is not a crime of fraud.

[2] In a case where the Defendant, the representative director of the Company A, entered the company A and worked as a mechanical maintenance machine around November 201, and filed a lawsuit against the retired employee B, including the comprehensive daily pay from December 2, 2011 to April 11, 2015, and submitted as evidentiary materials by altering the amount indicated in the daily pay column of the labor contract as of May 1, 2015, the case holding that the Defendant cannot be deemed as having committed an unlawful act of claiming restitution of unjust enrichment on the grounds that the Defendant did not have any effect on the retirement allowance payment as well as the retirement allowance payment as seen above, since the Defendant did not have any effect on the retirement allowance payment as well as the retirement allowance payment, and thus, the Defendant cannot be deemed as having falsely asserted that the Defendant’s assertion was false, nor can the Defendant seek restitution of unjust enrichment on the ground that the Defendant did not have any effect on the aforementioned legal principle on the retirement allowance payment as a retirement allowance payment as well as on the grounds that the Defendant did not have any other fraudulent act.

[1] Article 347 of the Criminal Act / [2] Articles 231, 234, 347(1), and 352 of the Criminal Act; Article 325 of the Criminal Procedure Act

[1] Supreme Court Decision 98Do1949 delivered on September 8, 1998 (Gong1998Ha, 2476) Supreme Court Decision 2003Do373 Delivered on May 16, 2003 (Gong2003Sang, 1415)

Defendant

Defendant

Law Firm Hysung, Attorney Yoon Sang-hoon

Daegu District Court Decision 2018No344 decided July 27, 2018

The conviction part of the judgment below is reversed, and the case is remanded to the Daegu District Court.

The grounds of appeal are examined.

1. As to the alteration of private documents and the uttering of altered private documents on May 1, 2015

For the reasons indicated in its holding, the lower court reversed the first instance judgment that acquitted the Defendant on the alteration of private documents and the exercise of altered private documents on May 1, 2015 among the facts charged in the instant case, and found the Defendant guilty.

Examining the reasoning of the lower judgment in light of the evidence duly admitted, the lower court did not err in its judgment by misapprehending the legal doctrine on the intent to alter private documents and use private documents, implied consent or constructive consent, social rules, and the grounds for exclusion of illegality, contrary to what is alleged in the grounds of appeal.

2. As to the attempted fraud based on the self-employment contract on May 1, 2015

A. A. A litigation fraud is an offense involving deceiving the court and obtaining a favorable judgment from one party to acquire the other party’s property or pecuniary advantage. The punishment inevitably causes a chill of the civil trial system to the effect that anyone can make an assertion favorable to himself/herself and receive remedy through a lawsuit. Thus, except for the case where the defendant acknowledged a crime, it shall not be easily found guilty unless there is any trace that the facts in the lawsuit are objectively apparent or that the defendant has clearly false arguments in the lawsuit or that the defendant has attempted to manipulate the evidence. In addition, for the establishment of a litigation fraud, it is insufficient to say that there is no claim as alleged at the time of the lawsuit to establish the lawsuit fraud, and it is necessary to recognize the existence of the claim as at the time of the lawsuit fraud with the awareness that he/she is deceiving the court by a false assertion, and it is not a fraud (see Supreme Court Decision 2003Do373, May 16, 2003, etc.).

Meanwhile, if an employer does not recognize the validity of a fixed retirement allowance payment even though the employer actually paid the money in the name of the retirement allowance to the employee, and it is not recognized that the payment of wages is valid, it is reasonable from the perspective of fairness to view that the employer should return the money in the name of the retirement allowance received by the employee to the employer as unjust enrichment, while the employee suffered losses equivalent to the above money by paying the same amount to the employee without any legal cause. However, in light of the legislative intent of the statutory provision on the retirement allowance system, it is reasonable to view that the above legal principle applies only on the premise that there exists an agreement on actual division of the retirement allowance between the employer and the employee, even though the pertinent agreement entered into between the employer and the employee was merely a determination on the amount of wages, the above legal principle cannot be applied (see, e.g., Supreme Court en banc Decision 2007Da90760, May 20, 2010; Supreme Court Decision 2112Da119, Dec. 24, 2014).

B. On September 13, 2016, the summary of this part of the facts charged is as follows: (a) the Defendant received a complaint of “request for the return of unjust enrichment” stating the purport of “request for the return of unjust enrichment” as stated in the daily rate column of the labor contract with Nonindicted Party 1, stating “104,00 won” as stated in the revised tape, and subsequently submitted one copy of the above labor contract, which is a private document as evidentiary document, stating “89,000 won” as stated in the revised tape, but the Defendant did not have attempted to assert that Nonindicted Party 1’s assertion of alteration, etc. in the above lawsuit, despite having submitted one copy of the labor contract as evidentiary document, it did not result in Nonindicted Party 1’s attempted to claim for the return of unjust enrichment.

The lower court found the Defendant guilty of this part of the facts charged on the following grounds: (a) if Nonindicted Co. 2 stated “104,000 won” as stated in the column of the above labor contract in the correction tape, and then “89,000 won” as stated in the column of the above labor contract, for the purpose of proving that the Defendant agreed to the comprehensive daily wage of KRW 104,00,000 between Nonindicted Co. 1 and Nonindicted Co. 1 on May 1, 2015, for the purpose of proving that the Defendant agreed to the comprehensive daily wage of KRW 104,00,000 in the pertinent civil procedure, even if the above content conforms to the facts, it is evident that it would cause new probative value in the labor contract; (b) thereby, it satisfies the elements of the crime of altering private documents, and accordingly, it also satisfies the requirements of each alteration document and the intent to acquire it.

C. Review of the reasoning of the lower judgment and the record reveals the following facts.

(1) The Defendant is the representative director of Nonindicted Co. 2 (hereinafter “Nonindicted Co. 2”) and Nonindicted Co. 1 entered Nonindicted Co. 2 on November 201 and retired on March 11, 2016.

(2) In light of the contents, form, etc. of the employment contract written by Nonindicted Company 2 with workers, the amount calculated by deducting the retirement reserve, etc. from the total daily wage at a certain rate was entered in the daily wage column after setting a general daily wage, and the wage was calculated and paid on the basis of the total daily wage.

(3) As of November 19, 201, April 1, 2014, and May 1, 2015, Nonindicted Company 2 drafted three labor contracts between Nonindicted Party 1 and Nonindicted Party 1. Of them, the comprehensive daily wage under the labor contract as of November 19, 201 and April 1, 2014 included “the retirement reserve (the daily rate of 8.3%)” as well as weekly paid-in allowances and monthly paid-in allowances. However, as of May 1, 2015, the “retirement reserve” column was deleted, and the retirement reserve was not included in the comprehensive daily pay after May 1, 2015.

(4) On March 11, 2016, Nonindicted Co. 1 filed a civil petition for non-indicted 2’s retirement allowance at the port office of the Ministry of Employment and Labor after the retirement from the company, and the Defendant first paid retirement allowance, and subsequently requested the Defendant to return the retirement reserve already paid as unjust enrichment. On August 31, 2016, Nonindicted Co. 1 paid the total amount of retirement allowance calculated separately from the retirement reserve separately from the retirement reserve.

(5) On September 13, 2016, the Defendant filed a lawsuit against Nonindicted Company 1 in the name of Nonindicted Company 2 to return KRW 9,862,989, which was included in the comprehensive daily wage from December 12, 2011 to April 2015, the Defendant filed a lawsuit to return the retirement reserve of KRW 9,862,989, in unjust enrichment. The Defendant, on May 1, 2015, sent the “104,000,” which was indicated in the daily wage column of the labor contract as the corrected tape, as the evidence of the lawsuit, and submitted it as evidence of the lawsuit.

(6) In the first instance trial, the lawsuit seeking the return of unjust enrichment was wholly accepted by Nonindicted Co. 2, the Plaintiff, and the lower court, which continued to file an appeal by Nonindicted Co. 1, constituted a voluntary conciliation between the parties.

D. We examine these facts in light of the legal principles as seen earlier.

Pursuant to the employment contract dated November 19, 201 and April 1, 2014, Nonindicted Co. 2 paid wages to Nonindicted Co. 1, including the retirement reserve amounting to 8.3% of the daily pay from November 2011 to April 30, 2015. After Nonindicted Co. 1’s withdrawal, Nonindicted Co. 1 paid the full amount of retirement allowances after consulting that the retirement reserve already paid to Nonindicted Co. 1 is not effective as retirement allowance. Accordingly, filing a lawsuit for return of unjust enrichment on the retirement reserve already paid by the Defendant is deemed as part of the lawful exercise of the right. Accordingly, it cannot be deemed as false assertion of the Defendant’s assertion or deceiving the court. Even if the Defendant, even if it is impossible to claim the return of the retirement reserve because it was merely a form of the retirement reserve paid to Nonindicted Co. 1’s payment of wages, this constitutes a case where the Defendant merely recognized the fact that it did not constitute a legal evaluation of the fact that it did not exist.

In addition, the lawsuit seeking the return of the aforementioned claim for return of unjust enrichment filed by the Defendant is seeking the return of the retirement reserve paid by Nonindicted Company 2 to Nonindicted Party 1 before the formation of the employment contract as of May 1, 2015, and does not require a claim related to wages paid after May 1, 2015. Therefore, the above employment contract stipulating working conditions after May 1, 2015 cannot serve as evidence for the occurrence of the right to the said lawsuit, and thus, cannot affect the content or outcome of the lawsuit at all. Although the Defendant submitted the aforementioned lawsuit by modifying the amount stated in the daily wage column of the employment contract as of May 1, 2015 when filing the lawsuit, it cannot be deemed that the Defendant knew the court by means of evidence manipulation or deceiving the court by proving false facts to the Defendant.

Nevertheless, the lower court found the Defendant guilty of attempted fraud on the erroneous premise that it was intended to prove that the Defendant submitted the amount written in the daily wage column of the contract on May 1, 2015 with Nonindicted Party 1 by changing the amount indicated in the daily wage column of the contract was to use the comprehensive daily wage of KRW 104,000 and KRW 89,000. In so doing, the lower court erred by misapprehending the legal doctrine of litigation fraud, which affected the conclusion of the judgment.

3. Scope of reversal

For the above reasons, the part of the judgment of the court below which found guilty of the attempted fraud should be reversed. However, except the attempted fraud, since the crime of attempted fraud and the alteration of private documents which the court below found guilty was prosecuted as a concurrent crime under the former part of Article 37 of the Criminal Act or an ordinary concurrent crime under Article 40 of the Criminal Act and was sentenced to one punishment at the court below, this part shall also be reversed.

4. Conclusion

Therefore, the conviction part of the judgment below is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Jung-hwa (Presiding Justice)