[1] The case where the defendant can be found guilty of fraud in the lawsuit

[2] The case reversing the judgment of the court below which found the defendant guilty of fraud by insufficient statements by the complainant

[1] Article 347(1) of the Criminal Act; Articles 307(2) and 308 of the Criminal Procedure Act / [2] Article 347(1) of the Criminal Act; Article 308 of the Criminal Procedure Act

[1] Supreme Court Decision 2003Do7700 Decided March 25, 2004, Supreme Court Decision 2003Do7124 Decided June 25, 2004 (Gong2004Ha, 1277) Supreme Court Decision 2005Do4222 Decided April 13, 2007

Defendant 1 and one other

Defendants

Law Firm Jeongam, Attorneys Lee Tae-tae et al.

Seoul Eastern District Court Decision 2007No1217 Decided November 27, 2008

The judgment of the court below is reversed, and the case is remanded to the Seoul Eastern District Court Panel Division.

We examine the grounds of appeal.

1. The burden of proving the facts constituting an offense prosecuted in a criminal trial is to be borne by the public prosecutor, and the conviction shall be based on the evidence of probative value, which makes the judge sure that the facts charged are true to the extent that there is no reasonable doubt. Thus, if there is no such evidence, even if there is doubt of guilt against the defendant, the interest of the defendant should be judged, and even if there is no such evidence, the fraud in the lawsuit means to obtain the other party's property or property benefits by deceiving the court in favor of himself/herself, and the punishment would inevitably lead to the chill of the civil trial system that anyone would be entitled to remedy his/her rights by claiming favorable facts and by means of a lawsuit, except where the defendant acknowledged the crime. Thus, the conviction shall not be easily found unless it is objectively apparent that his/her arguments in the lawsuit are different from the facts, or there is a trace that the defendant knew or attempted to manipulate the evidence (see, e.g., Supreme Court Decision 2001Do2590, Apr. 22, 2003).

2. A. The court below accepted a false statement from the witness of the court of first instance and the witness of the court of first instance, and the witness of the court of first instance, and lent KRW 50 million between March 12, 1996 and February 27, 1997. At the request of the complainant, Non-Indicted 2, the complainant, i.e., delivered the above defendant the first promise bill with KRW 2 million which was issued on April 15, 1996 with KRW 10,000,000,000,000 from KRW 10,000,000,000 won and KRW 20,000,000,000,000 won and KRW 10,000,000,000,000 won and KRW 10,000,000,000,000 won were delivered to the above defendant 1,297.

B. However, in light of the empirical rule, first of all, while lending KRW 50 million from March 12, 1996 to February 27, 1997, a promissory note is to be issued only for KRW 20 million, which is a part of the lending. The lower court determined that the said KRW 20 million was prepared as a separate promise bill because of the fact that the said KRW 20 million was divided and borrowed in small amount. However, although the lower court determined that the promissory note was issued as the evidence of the lending and the delivery of the amount of the loan was not granted, it is extremely unusual in light of the empirical rule.

In addition, if a promissory note was already issued as evidence of loans, all loans up to the point of time, including loans extended up to several times, and there was a promissory note already issued as to some of the loans, it would normally be returned and a new promissory note is delivered, and otherwise, the fact that the first promissory note was not recovered from Defendant 1 is equivalent in light of the empirical rule.

In addition, Non-Indicted 3’s statement is also a witness’s statement that the whole purpose of the statement is not to memory the monetary transaction with Defendant 2, which had been previously made due to brain color, and only to see the remaining documents. Thus, it is insufficient to prove that Non-Indicted 3 did not deliver KRW 20 million to Defendant 2 on April 13, 1996.

C. In light of the legal principles as seen earlier, it cannot be deemed that Defendant 1’s assertion in the instant loan lawsuit is objectively clearly and objectively revealed, and it cannot be ruled out that Defendant 1 lent KRW 20 million to Nonindicted 1 and Nonindicted 2 in the process of issuing the bill of promise No. 1. Thus, it is difficult to readily conclude the charge solely on the basis of the facts stated by the lower court.

Nevertheless, the court below found the Defendants guilty of the facts charged in this case. In so determining, the court below erred by misapprehending the legal principles on litigation fraud, and thereby adversely affected the conclusion of the judgment. The grounds of appeal assigning this error are with merit.

3. Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Yang Sung-tae (Presiding Justice)