[1] The requirements to establish a crime of fraud under the Criminal Code in a case where a deception infringes on the national or public legal interest

[2] Whether a crime of violation of Article 40 of the former Subsidy Management Act, which punishs “the act of receiving subsidies by false application or other unlawful means,” is separate from a crime of fraud (affirmative)

[1] Article 347 of the Criminal Act / [2] Article 40 of the former Subsidy Management Act (Amended by Act No. 13931, Jan. 28, 2016); Article 347 of the Criminal Act

[1] Supreme Court Decision 2008Do7303 Decided November 27, 2008 (Gong2008Ha, 1847) / [2] Supreme Court Decision 2002Do5085 Decided December 24, 2002

Defendant

Defendant

Law Firm Uman, Attorneys Park Ho-dae et al.

Changwon District Court Decision 2017No551 decided June 15, 2017

The appeal is dismissed.

The grounds of appeal are examined.

1. As to the violation of the Act on Fraud and Subsidy Management

Even if the act of deception infringes on the national or public legal interests, if it can be assessed at the same time as infringing on property rights, which are the legal interests protected by the Criminal Act, under the Criminal Act, fraud may be established unless the pertinent administrative laws and regulations separately provide for punishment corresponding to the special relationship with the crime of fraud (see Supreme Court Decision 2008Do7303, Nov. 27, 2008).

Meanwhile, Article 40 of the former Subsidy Management Act (amended by Act No. 13931, Jan. 28, 2016) provides that “an act of receiving a subsidy by false application or any other unlawful means” is a constituent element of “an act of receiving a subsidy by false application or any other unlawful means,” and such act does not require the actor to have an intent to obtain unlawful acquisition and the other party to be omitted from mistake. Therefore, it is a separate crime from fraud that constitutes a constituent element of a crime (see, e.g., Supreme Court Decision 2002Do5085, Dec. 24, 2002).

원심은, 피고인이 허위의 서류를 작성·제출하는 등의 방법으로 밀양시를 기망하고 이로 인하여 착오에 빠진 밀양시로부터, (1) 2009년 쌀값 안정자금 158,060,000원을 편취하였다는 사기의 공소사실과, (2) ‘2012년 들녘별 쌀경영체 육성사업’ 대상자로서 무인헬기 구입 보조금 및 교육·컨설팅비 보조금 명목으로 합계 162,000,000원을 편취함과 동시에 부정한 방법으로 보조금을 교부받았다는 사기 및 보조금 관리에 관한 법률 위반의 공소사실을 각 유죄로 인정한 제1심판결을 그대로 유지하였다.

Examining the reasoning of the lower judgment in light of the aforementioned legal doctrine and the evidence duly admitted, the lower court’s determination is justifiable, and contrary to what is alleged in the grounds of appeal, there were no errors by misapprehending the legal doctrine on deception, mistake, damage legal interest, and the principle of legality

2. As to the offering of bribe

The lower court affirmed the first instance judgment convicting the Defendant of this part of the facts charged that the Defendant offered a bribe of KRW 2 million in connection with the public official’s duties.

Examining the reasoning of the lower judgment in light of the evidence duly admitted, the lower court’s determination is justifiable, and contrary to what is alleged in the grounds of appeal, the lower court did not err by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules

3. Conclusion

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

Justices Ko Young-han (Presiding Justice)