[1] Strictness of the application of lawsuit fraud crime

[2] Whether the defendant can be the subject of the crime of fraud in civil procedure (affirmative)

[1] A litigation fraud is an offense involving acquiring the other party’s property or pecuniary advantage by deceiving a court in favor of himself/herself. The punishment of it is inevitable to inevitably lead to the chilling of the civil trial system that any person may make favorable arguments to himself/herself and receive remedy through a lawsuit. Thus, unless the defendant has acknowledged a crime, he/she shall not be easily convicted of his/her charges unless there is any trace that the facts differ from the facts, or that the defendant objectively knows that his/her arguments in the lawsuit are clearly false, or that the defendant has attempted to manipulate evidence.

[2] Even if the defendant is not only the plaintiff who is the active litigant but also the defendant in a defensive position, if the court is deprived of his/her property performance by deceiving him/her by means of active methods, such as submitting a false document, submitting it as evidence, or putting him/her out a perjury, and if he/she is exempted from his/her property performance by being ruled in favor of the court, the crime of fraud is established as to the property value equivalent to the value of the property. In such a case, if he/she submits a false document with intent to deceiving the court by active means, or submits a reply or a preparatory document containing his/

[1] Article 347 of the Criminal Code / [2] Article 347 of the Criminal Code

[1] Supreme Court Decision 96Do2666 delivered on February 25, 1992 (Gong1992, 1208), Supreme Court Decision 96Do242 delivered on July 22, 1997 (Gong1997Ha, 2592) / [2] Supreme Court Decision 87Do1090 delivered on September 22, 1987 (Gong1987, 1675), Supreme Court Decision 91Do1524 delivered on August 27, 1991 (Gong191, 2467)

Defendant

Defendant

Incheon District Court Decision 97No976 delivered on September 25, 1997

The appeal is dismissed.

The grounds of appeal are examined.

1. As to the ground of appeal on embezzlement

Examining the reasoning of the judgment below in light of the records, the court below is just in finding the defendant guilty of the crime of embezzlement of this case and there is no error of misconception of facts in violation of the rules of evidence. The grounds for appeal pointing this out cannot be accepted.

2. As to the ground of appeal on the attempted fraud

A litigation fraud is a crime involving the acquisition of the other party's property or pecuniary advantage by deceiving the court and obtaining a judgment favorable to himself. The punishment of such a crime is inevitable to inevitably bring about the chilling of the civil trial system that anyone may seek favorable benefit to himself and receive remedy through a lawsuit. Thus, except in a case where the defendant acknowledged the crime, unless there are cases where it is objectively obvious that the facts in the lawsuit are different from the facts or where there is any trace that the defendant had objectively recognized that his allegations in the lawsuit are clearly false or attempted to manipulate the evidence, he shall not be found guilty (see Supreme Court Decisions 91Do266, Feb. 25, 1992; 96Do2422, Jul. 22, 1997).

However, even if the defendant is not only the plaintiff who is the active litigation party but also the defendant in a defensive position, as a result of deceiving the court by means of active methods, such as preparing a false document, submitting it as evidence, or giving a perjury, if the performance of his/her property is exempted by a final and conclusive judgment in favor of the court, the crime of fraud is established as to the equivalent value of the property (see Supreme Court Decision 87Do1090, Sept. 22, 1987). In such a case, in a case where the court has expressed a false document with intent to deceiving the court as evidence, or a reply or a preparatory document stating the assertion therefrom, the execution of the crime of fraud is commenced.

Examining the reasoning of the judgment below in light of the records and the above legal principles, the court below was justified in finding the defendant guilty of attempted fraud, and there is no error in the misapprehension of legal principles as to the criminal intent of fraud and fraud, or in misunderstanding of facts against the rules of evidence. The grounds of appeal pointing this out are not acceptable.

3. As to the ground of appeal on unreasonable sentencing

If a sentence of less than 10 years is imposed as in the instant case, the unfair sentencing cannot be a legitimate ground for appeal. The grounds for appeal pointing this out cannot be accepted.

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

Justices Park Jong-chul (Presiding Justice)