The defendant shall be innocent.

1. On August 20, 2004, the Defendant: (a) lent KRW 15 million to D in the name of the French land from August 20, 2004; and (b) demanded the borrower to prepare a loan certificate stating “The borrower shall pay KRW 20 million, the borrower C, and the repayment date on December 22, 2004.”

On September 30, 2011, the Defendant filed a lawsuit against Defendant C at the Daejeon District Court located in Seo-gu Daejeon District Court, Seo-gu, Daejeon, Daejeon, and submitted as evidence the loan certificate prepared as above, while filing a lawsuit against Defendant C for a loan claim under Article 2011Na15627 of the said Court.

However, in fact, the above loan certificate was received in the name of C while the defendant lent money to D, and the above loan certificate was already paid with D.

The Defendant, by deceiving the court, received the payment of KRW 20 million under the name of the loan and its interest, but was attempted by dismissing the Plaintiff’s dismissal and the appeal by the second instance court.

2. Determination

A. The defendant and his defense counsel respectively lent the same amount of money in the name of C before August 2004 and around August 2005, but the loan was repaid on August 8, 2004. Although the loan was not repaid on August 2005, the defendant and his defense counsel had filed a lawsuit on the ground that the loan was not repaid by mistake and was not repaid on August 2004. Thus, the defendant and his defense counsel had no intention to commit fraud.

B. The relevant legal doctrine fraud is a crime that acquires the other party’s property or pecuniary advantage by deceiving the court and obtaining a favorable judgment for himself/herself. If the defendant is found guilty, it would inevitably lead to the chilling of the civil trial system that allows him/her to make a favorable assertion and remedy through the lawsuit. Thus, unless the defendant has acknowledged a crime, it is obvious that the facts different from the facts in the lawsuit are objectively apparent and that the defendant knew that his/her assertion was clearly false or attempted to manipulate the evidence.