[1] Strictness and requirements for the application of the crime of fraud in lawsuit

[2] Whether it can be deemed as a manipulation of evidence in a lawsuit fraud in a case where a written notice, etc. stating the unilateral right owner, which was sent by content-certified mail, is submitted as evidence to the court (negative)

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

[1] Supreme Court Decision 91Do2427 delivered on April 10, 1992 (Gong1992, 1637), Supreme Court Decision 94Do1819 delivered on October 25, 1994 (Gong1994Ha, 3166), Supreme Court Decision 2002Do6851 Delivered on February 11, 2003 (Gong2003Sang, 868), Supreme Court Decision 2003Do373 Delivered on May 16, 2003 (Gong2003Sang, 1415)

Defendant

Prosecutor

Attorney Park Jong-young (National Assembly)

Seoul District Court Decision 2003No7864 Delivered on November 26, 2003

The appeal is dismissed.

A litigation fraud is an offense that acquires the other party's property or property benefits by deceiving the court and obtaining a judgment favorable to himself/herself. If a defendant is found guilty, it would inevitably lead to the chilling of the civil trial system that can receive remedy through a lawsuit. Thus, unless it is evident that a crime is established as it is recognized that the defendant objectively shows different arguments in the lawsuit and that he/she clearly knows that his/her assertion is false, or that he/she attempts to manipulate evidence, he/she shall not be found guilty unless it is evident that the crime is established, and it does not constitute fraud merely mean that the act of falsely recognizing facts or that he/she exists a right that does not exist due to any mistake in legal assessment, even if there is somewhat different arguments in the lawsuit, it cannot be deemed that there is a criminal intent to commit fraud (see, e.g., Supreme Court Decisions 91Do2427, Apr. 10, 1992; 9Do2427, Oct. 25, 1994);

In addition, the manipulation of evidence in the litigation fraud refers to an act of manipulating objective and third party evidence by making a false disposal document, etc. or inducing a witness to make a false testimony. Thus, prior to the filing of a lawsuit, the defendant cannot be deemed to have fabricated the evidence even if the defendant prepared a written notification stating the owner of a unilateral right to the victim in his/her name and sent it by content-certified mail, and submitted it to the court as evidence.

Examining the reasoning of the judgment below in light of the above legal principles and the evidence revealed in the records, the court below's decision of the first instance that acquitted the charged facts of this case is just and there is no error of law that affected the conclusion of the judgment by misunderstanding the legal principles as to litigation fraud, as alleged in the grounds of appeal.

Therefore, the appeal is dismissed. It is so decided as per Disposition.

Justices Lee Yong-woo (Presiding Justice)