The case holding that it is difficult to view that the execution of the crime of acquiring subsidies is commenced on the ground that the report on the settlement of subsidies is merely a reference material for determining whether to provide subsidies and the amount of subsidies and it cannot be deemed a direct document where the branch head of the organization with disabilities submits a false report on the settlement of subsidies to obtain more subsidies from local governments.

The case holding that it is difficult to see that the execution of the crime of acquiring subsidies is commenced on the ground that the report on the settlement of subsidies is merely a reference material for determining whether to provide subsidies and the amount of subsidies and it cannot be deemed a direct document where the branch head of the organization with disabilities submits a false report on the settlement of subsidies to obtain more subsidies from local governments.

Articles 25(1) and 347 of the Criminal Act

Supreme Court Decision 98Do3443 delivered on March 12, 1999 (Gong1999Sang, 709) Supreme Court Decision 99Do631 delivered on January 25, 2002

Defendant

Defendant

Attorney Choi Han-sung

Seoul District Court Decision 2002No7807 Delivered on February 11, 2003

The part of the judgment below against the defendant is reversed, and the case is remanded to the Seoul District Court Panel Division.

1. The point of attempted fraud;

Of the facts charged in the instant case, the summary of the attempted fraud is as follows: (a) the Defendant, as the head of the first City branch of the Gyeonggi-do Branch of the Korea Health Welfare Association for the Disabled of the Disabled of the Disabled of the Republic of Korea, was aware of the fact that the determination of the subsidy for the disabled of the first City was made on the basis of the amount indicated in the previous year’s statement of the subsidy settlement, etc.; (b) submitted false and exaggerated receipts to the Social Welfare Department for the first time by attaching false and exaggerated receipts; and (c) in collusion with the co-defendants of the lower court, the Defendant failed to receive excessive dividends; and (d) in collusion with the above co-defendants of the lower court on April 20, 201 at the event of the disabled held around May 10, 201 and the event of the disabled of the Republic of Korea held around 16,625,660 won, prepared a false settlement report as if the expenses were paid, and attempted to receive the difference in proportion to the subsidies from the Social Welfare Officer and public officials in charge, but failed to do so.

In regard to this, the court below maintained the first instance court which convicted the defendant of the above facts charged on the ground that, in determining the amount of subsidy for disabled organizations, the first instance court used a statement of accounts of the subsidy provided in the year concerned as reference material, according to the first instance trial subsidy management ordinance, when the business year ends, the Mayor conducts an inspection of the settlement of the subsidy when the business year ends, and when the amount of the subsidy is reduced than the amount of the project that serves as the basis for calculating the amount of the project cost settlement, the amount of the subsidy shall be reduced according to the reduction rate, and the Mayor may suspend the provision of the subsidy or order the return of the subsidy already granted.

However, we cannot accept the judgment of the court below that found the above guilty on the premise that the execution of deceptive act was commenced.

According to the records, the first City subsidies shall be paid within the scope of the budget after examining the application for subsidies from the above branch in accordance with the Local Finance Act and the 1st City Subsidy Management Ordinance with respect to the marriage awareness of disabled persons and the exercise of their days. The above branch of the branch of the branch of the branch of the branch of the branch of the branch of the branch of the branch of the branch of the branch of the branch of the branch of the branch of the branch of the branch of the branch of the branch of the branch of the branch of the branch of the branch of the branch of the branch of the branch of the branch of the branch of the branch. The first City of the branch of the branch of the branch of the branch of the branch of the branch of the branch of the branch of the branch shall submit an settlement report after using the subsidies in accordance with the above Municipal Ordinance. The first City of the branch of the branch of the branch of the branch of the branch of the branch of the branch of the branch of the branch of the branch of the branch of the branch of the branch of the branch of the branch of the branch of the branch of the branch of the branch of the branch of the branch of the branch of the branch of the branch of the branch of the branch of the subsidy of the 1.

According to the circumstances, since the first-time subsidy payment and its amount are received separately from the settlement report of accounts in the previous year and examined and decided thereon, the settlement report of subsidies to be submitted at the first-time by the above-mentioned branch shall be limited to only one reference material in determining whether to provide subsidies and the amount thereof, and shall not be deemed a direct document that determines whether to provide subsidies and directly determines the amount thereof, and therefore, it is difficult to deem that the Defendant’s submission of a false settlement report, such as the facts charged, does not lead to the commencement of an act that includes realistic risks leading to the realization of the acquisition of subsidies in the following year, and therefore, it is difficult

Nevertheless, the court below determined that the submission of a false statement of subsidy settlement alone was the fact of the commencement of deception by intention of the fraud of the next year. In so doing, the court below erred by misapprehending the legal principles on the commencement time of the execution in fraud, which affected the conclusion of the judgment.

2. The point of occupational embezzlement with respect to rent;

The defendant collected and stored KRW 7,850,000 from June 2001 to September 200 of the same year and embezzled the above amount of KRW 2,850,60,400 as a deposit account, and used the remainder of KRW 4,240,400 in daily living expenses, etc., the defendant acknowledged that he did not deposit the rent of KRW 7,091,000 out of the total of KRW 7,240,000 into the deposit account of the branch and used it for consumption. However, the defendant used the vehicle fuel expenses of the co-defendant of the court below, the meals to the branch visitors, the entertainment expenses for the branch visitors, and the office expenses of the branch, and it does not constitute embezzlement for the defendant's arbitrary use of the above amount of KRW 4,240,400 as an individual's personal use. Thus, the court below's statement that the defendant used the above amount of KRW 40,400 as an abstract evidence without any specific use or use.

Rather, according to the statement of the court of first instance and the court below, the above branch's revenue consisting of the above rent and the amount that the defendant personally supported. From June 2001 to September of the same year, the above branch's revenue is 5,820,000 won in total. The rent collected from the above branch's joint defendant was managed by the court below, and part of the rent was immediately disbursed for the branch's operating expenses and it is impossible to deposit all of the rent in the deposit account (e.g., in the case of June 13, 2001, the rent was 20,000,000 won was not deposited into the deposit account, and the daily rent was 150,000,000 won was not deposited into the deposit account and the daily rent was 10,000,000,000 won was 20,0000 won or more, and it was contrary to the principle of accounting by the defendant's statement on the receipts and disbursements prepared by the public prosecutor of Gyeonggi-do branch.

Nevertheless, the court below maintained the first instance court which convicted the defendant on the ground that such consumption cannot be deemed a voluntary use of the rent income, unless it is found that the operating committee of the branch, etc. officially decided to use the cash income of the defendant for the expenses for maintaining the defendant's vehicle or entertainment expenses, etc., provided that the above cash income book was not reliable solely on the ground that it was prepared after the fact, and in particular, the court below affirmed the first instance court which found the defendant guilty on the ground that such consumption cannot be deemed a voluntary use of the rent income. In so doing, there is an error of law

3. The point of occupational embezzlement in relation to merchandise coupons;

This part of the facts charged is that the defendant used 180,00 won of KRW 180,00, among 240 merchandise coupons 240, which the defendant received from July 2001 to September 20 of the same year, to deliver them to the needy persons, and embezzled them for personal purposes. This part of the facts charged is that the defendant used 32 copies of merchandise coupons 240, the disabled persons actually and 26 copies of merchandise coupons 240, and 180 copies of the remaining 180, other than 60 items of merchandise coupons 26 and 60 copies of merchandise coupons 26, which the co-defendant of the court below used for food expenses, for personal purposes. Thus, it is not recognized that the defendant used them for purposes other than the limited purposes because the use of merchandise coupons was strictly limited and used for the limited purposes. In this case, the above facts charged should be found guilty.

On April 26, 2001, the defendant used 120 copies of merchandise coupons transferred by the former branch of the Do branch on April 24, 2001 to purchase corrosions, etc. to prepare for events on the Day of Persons with Disabilities, together with the chairperson of the operation committee. 40 copies of merchandise coupons newly issued at No. 1 City around April 2001, which were 80 copies of merchandise coupons that were kept in custody at the time, and 51 copies of the above 50 copies of merchandise coupons, which were consistently used by the defendant for the purpose of purchasing the 120 merchandise coupons to prepare for events on the Day of Persons with Disabilities. The defendant's wife, together with the chairperson of the operation committee, used the 3th day of the 29th day of the 1st day of the Do branch, not for the purpose of using the 10th day of the 20th day of the 1st day of the 3th day of the 201th day of the 29th day of the 29th day of the judgment below.

The court below's statements in the police and the first instance court, which are admitted as evidence in conformity with the above facts charged, are limited to the defendant's direct use of 32,00 persons with disabilities among 240 merchandise coupons, and the defendant purchased 208 merchandise coupons with 120 merchandise coupons, so it is not sufficient to be used as evidence of guilt. On the other hand, according to the witness's statement in the court below and the witness's statement in the second instance court, the above merchandise coupons can be used only in the agricultural wholesale store, and 60 merchandise coupons transferred by the full-time officer cannot be used in the old agricultural and fishery products market, and 120 merchandise coupons transferred by the defendant's wife were transferred to the defendant's wife, 200 paper 10 paper 20 paper 20 paper 30 paper 10 paper 20 paper 10 paper 20 paper 20 paper 10 paper 20 paper 20 paper 20 paper 13 paper 10 paper 20 paper 20 paper 3 paper 10 paper 3 paper 20 paper 2.

Nevertheless, the court below rejected the defendant's defense without any specific grounds and ruled that the first instance court's judgment was justifiable which held that the defendant embezzled the defendant's defense using 180 copies of merchandise coupon 240 as a voluntary use of the merchandise coupon 240. In so doing, it is erroneous in the misapprehension of the rules of evidence to recognize the facts charged by the evidence insufficient to prove the defendant as evidence

4. Therefore, the part of the judgment of the court below which rendered a single punishment by deeming the criminal facts of this case, including attempted fraud and occupational embezzlement, as substantive concurrent crimes, is reversed, and this part of the case is remanded to the court below for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices.

Justices Lee Ji-dam (Presiding Justice)