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

[2] Requirements for each lawsuit fraud by the plaintiff and the defendant to be constituted

[3] The case holding that there was an error of mistake of facts or of misapprehension of legal principles against the judgment below that found the defendant's crime of perjury which was established against the defendant, and that the defendant's crime of fraud is less exceptionally against the defendant

[1] In a case where not only the plaintiff who is the active litigant but also the defendant who is in a defensive position, had the court take a false document, submit it as evidence, and omit the performance of his/her property by deceiving the court in an active manner, and thereby exempted him/her from the performance of his/her property by being ruled in favor of the court, a crime of fraud is established as to the equivalent

[2] A litigation fraud is an offense involving acquiring the other party's property or pecuniary advantage by deceiving the court and obtaining a judgment favorable to himself/herself. In order to establish a litigation fraud by the plaintiff, it is insufficient to say that there is no claim as alleged at the time of the lawsuit by the plaintiff that there is no claim as alleged at the time of the lawsuit, and it is necessary to make a perception of deceiving the court by making a false assertion and proof even though it is well aware of the existence of the claim in question. Similar to this, for the establishment of the litigation fraud by the defendant, it is insufficient to say that there is a debt such as the plaintiff's assertion, and even if it is well known that there is a debt, the court should be aware of deceiving by means of a false assertion

[3] The case holding that there was an error of misunderstanding of facts or misunderstanding of legal principles against the judgment of the court below that recognized the defendant's crime of aiding and abetting perjury and that the defendant's crime of aiding and abetting perjury is light

[1] Article 347 of the Criminal Code / [2] Article 347 of the Criminal Code / [3] Article 347 of the Criminal Code

[1] Supreme Court Decision 97Do2786 decided Feb. 27, 1998 (Gong1998Sang, 963) / [2] Supreme Court Decision 2003Do373 decided May 16, 2003 (Gong2003Sang, 1415)

Defendant

Defendant

Attorney Ha-ok

Suwon District Court Decision 2002No2238, 3414 delivered on December 26, 2002

The part of the judgment below regarding fraud is reversed, and that part of the case is remanded to Suwon District Court Panel Division. The remaining grounds of appeal are dismissed.

1. In light of the records, the court below's decision that maintained the first instance court which found the defendant guilty of the charge of perjury is just, and there is no error of misconception of facts or misapprehension of legal principles due to violation of the rules of evidence as alleged in the

2. The court below affirmed the judgment of the court of first instance that found the defendant guilty of the charge of fraud by allowing the plaintiff to make an endorsement on the back of Chapter 2 of the Promissory Notes in the appellate court of the claim for the payment of the Promissory Notes (hereinafter referred to as "the claim for the payment of the Promissory Notes") against the plaintiff who was the victim's title as the plaintiff and the plaintiff was the victim's title, and by allowing the plaintiff to make an endorsement on the back of Chapter 2 of the Promissory Notes, when the plaintiff demanded the plaintiff to do so, he would bring the name plates and verification seals to be cut out of the office, and put the name plates and verification seals to be affixed on the back of Chapter 2 of the Promissory Notes, and then it was the name plates and seal of the original Construction." This was the original Construction's name plates and seal. The appellate court had the victim's title revoked the judgment of the court of first instance, which dismissed the claim, and had the original Construction take property profits if the judgment became final and conclusive by dismissal of the Supreme Court judgment.

In a case where not only the plaintiff who is the active party but also the defendant in a defensive position, deceiving the court by means of active methods, such as preparing a false document, submitting it as evidence, or giving perjury, and where the performance of his/her property is exempted by a final and conclusive judgment in favor of the court, it shall be deemed that fraud is established as to the equivalent value of the property (see Supreme Court Decision 97Do2786, Feb. 27, 1998).

However, a lawsuit fraud is an offense involving acquiring the other party's property or property interest by deceiving the court and obtaining a judgment favorable to himself/herself. In order to establish a lawsuit fraud by the plaintiff, it is insufficient to say that there is no claim as alleged at the time of the lawsuit fraud by the plaintiff does not exist, and it is necessary to recognize the court as deceiving the court by making a false assertion and proof even though it is well known that the claim for the lawsuit has not existed (see Supreme Court Decision 2003Do373, May 16, 2003). As such, in order to establish a lawsuit fraud by the defendant, it is insufficient to say that there is a debt, such as the plaintiff's assertion, in order to establish the lawsuit fraud by the defendant, and even if it is well known that there is a debt, the court should be aware of the deception by making a false assertion and proof.

The appellate court of the claim for the bill of this case rejected the plaintiff's assertion that the plaintiff's title holder bears the burden of proving the authenticity of the name and seal of the original package construction, namely, whether the name and seal affixed on the column for endorsement of the bill are used by the original package construction, and whether the representative director of the original package construction or the delegated person by him/her affixes the seal. The non-indicted's false statement was not based on the rejection of evidence that corresponds to the facts of the assertion of the title in the judgment, and even if the non-indicted's false testimony was excluded, the conclusion of the appellate court's judgment on the claim for the bill of this case is justified.

Therefore, since it is impossible to recognize endorsement of the original construction of the bill of this case, there is no bill payment claim or joint and several surety claim against the defendant as asserted by the plaintiff's title, or there is no evidence to acknowledge it at least. Thus, even if the defendant instigated the above perjury and made a false statement by the non-indicted, it is insufficient to conclude that the defendant caused the above perjury with the awareness of deceiving the court by means of a false assertion and proof even though the defendant is well aware that there is a debt of the original construction corresponding to the claim of the title claim.

Therefore, the court below recognized that the defendant was guilty of the crime of perjury, and found the period of the crime of fraud in the lawsuit to be light, or erred by misapprehending the legal principles on intentional act or deception in the lawsuit fraud, which affected the conclusion of the judgment.

3. Therefore, the part of the lower judgment regarding fraud is reversed, and that part of the case is remanded to the lower court for further proceedings consistent with this Opinion. The remainder of the appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices

Justices Lee Han-gu (Presiding Justice)