[1] The meaning of "false application or other fraudulent methods" under Article 40 of the Act on the Budgeting and Management of Subsidies

[2] The purpose of Article 40 of the Act on the Budgeting and Management of Subsidies and the meaning of "the grant of subsidies by unlawful means"

[3] Whether the crime of preparing a false official document may be recognized where a public official has been investigated in advance in accordance with the policy to avoid multiple business tripss and to promptly handle civil affairs and then prepares a business trip name statement under the conviction that the content of the business trip investigation is not changed (negative)

[1] Article 40 of the Act on the Budgeting and Management of Subsidies provides that "any person who has received subsidies or indirect subsidies by false application or other unlawful means or any person who has knowingly received subsidies or indirect subsidies shall be punished by imprisonment for not more than five years or by a fine not exceeding five million won." The term "false application or other unlawful means" refers to active and passive acts which may affect the decision-making with respect to the grant of subsidies by deceptive means or other unlawful means, even though they are not entitled to subsidies by normal procedures.

[2] In light of the fact that Article 40 of the Act on the Budgeting and Management of Subsidies punishs only a person who actually received subsidies, etc., and the attempts to do so are not prescribed in the same Act, and Article 42 of the same Act provides a separate penal provision regarding the violation of the procedure for individual subsidy administration, etc., the purpose of the Act is not to punish the violation of the State's financial interests under the legal interest protected by the law and abstractly punish the violation of the order or fairness of subsidy administration or the violation of the procedure for individual subsidy administration. Thus, "the case of receiving subsidies" refers to "the case of receiving subsidies by unlawful means" under the same Article refers to the case of receiving subsidies in excess of the amount to be granted or to be granted to the relevant business, etc., which is not subject to the grant of subsidies. Even if the subsidy was used as a means that may be deemed to lack any other justification in receiving subsidies, it does not constitute a case of receiving a legitimate amount of subsidies

[3] If a public official was investigated in advance in accordance with the policy to avoid multiple business trips and promptly handle civil affairs, and then prepares a business trip name statement under the conviction that the content of the business trip investigation is not changed, it cannot be deemed that there was a criminal intent to prepare a false business document if the date of the business trip is indicated as the date of preparation.

[1] Article 40 of the Act on the Budgeting and Management of Subsidies/ [2] Articles 40 and 42 of the Act on the Budgeting and Management of Subsidies/ [3] Article 227

[3] Supreme Court Decision 82Do3141 delivered on December 27, 1983 (Gong1984, 280)

Defendant 1 and five others

Defendant 2, 5, 6 and the Prosecutor

Attorney Shin Sung-ap (for Defendant 1, Counsel for defendant 1)

Jeju District Court Decision 99No40 delivered on August 18, 1999

All appeals are dismissed.

We examine the grounds of appeal.

1. Judgment on Defendant 2, 3, and 4’s grounds of appeal

Upon examining the reasoning of the judgment below in light of the records, the court below is just in finding the above defendants guilty of the crime that the above defendants conspired to prepare and exercise "data for audit by the Board of Audit and Inspection relating to the 95 fire production and distribution support project of this case", and there is no violation of the rules of evidence or misunderstanding of legal principles as to legitimate acts or acts of social reasonableness as alleged in the grounds of appeal.

2. Judgment on the grounds of appeal by the prosecutor

A. Violation of the Act on the Budgeting and Management

(1) Summary of the judgment below

According to the reasoning of the judgment below, the court below reversed the judgment below which found the Defendants guilty of violating the Act on the Budgeting and Management of Subsidies and acquitted the Defendants.

① According to Articles 16 and 17 of the above Act and Article 7 of the Enforcement Decree of the Act, a person who applies for the grant of a subsidy shall enter the amount to be borne by the applicant in the application form for the grant of subsidy, and shall state the name or title of the person who bears expenses other than the portion to be covered by the subsidy out of the expenses incurred in the subsidy program, and the amount to be borne by the applicant. The head of a central government agency shall review the application form submitted and determine whether he/she has the ability to pay the subsidy. After examining whether he/she has the ability to pay the subsidy, the "Guidelines for the Integrated Implementation of Agricultural and Fisheries Projects", which is a detailed guidelines for the determination of his/her ability to pay the subsidy, shall be accompanied by a letter of confirmation by the head of the agricultural cooperative. In such a case, examining the subsidy operator's ability to pay the subsidy and

② According to the first instance court and the evidence duly adopted by the lower court, it is difficult for the first instance court to easily raise funds to general farmers requiring enormous funds of KRW 3.298 million in total, and eventually, it was promoted by the State-led farmers to pay subsidies to them in the name of the non-indicted 1 or the non-indicted 9 corporation (hereinafter referred to as the "non-indicted 1") on September 21, 1995, the non-indicted 1 or the non-indicted 9's non-indicted 9's non-indicted 1 or 6's non-indicted 9's non-indicted 9's non-indicted 9's non-indicted 9's non-indicted 1 or 6's non-indicted 9's non-indicted 1's non-indicted 9's non-indicted 1 or 6's non-indicted 1's non-indicted 1's non-indicted 9's non-indicted 1's non-indicted 1's non-indicted 9's non-indicted 9's own land.

(3) The guidelines of the Governor of Jeju Special Self-Governing Province with respect to the execution of subsidies shall be given first to receive subsidies, loans, and self-charges in order to simultaneously pay them. However, the above guidelines are not clear provisions on the relevant statutes or the guidelines for the integrated implementation of agricultural and fishery businesses. Since the above guidelines are aimed at the implementation of a subsidy program which is intended by securing the payment of self-charges rather than the protection of the contractor, it shall not mean real estate or money owned by the applicant for the project, but it shall be deemed possible to borrow money from others as well as financial institutions. The payment of subsidies before the deposit and payment of the self-charges to Defendant 1 is likely to interfere with the progress of the project, such as where the machinery and materials imported for the construction of the glass greenhouse do not receive the unpaid payment, and the payment of subsidies was made in accordance with the generally accepted social norms by the Governor of Jeju Special Self-Governing Province with respect to the above subsidy and its execution after receiving the self-charge's own share in the construction project. In light of such circumstances, Defendant 1 had already been paid the above subsidy and its execution.

④ In addition to Defendant 1’s act does not constitute an act stipulated under Article 40 of the Act, and the existence of a subsidized business operator’s self-sufficiency in accordance with the work process guidelines as seen above is based on the letter of confirmation issued by the head of Nonghyup, which appears to be for a specialized financial institution to make a more accurate judgment rather than on the public official’s own ability to bear the burden, Defendant 1 cannot be deemed to have paid subsidies even though he knows that Defendant 1 received subsidies by false application or other wrongful means prescribed under Article 40 of the Act.

(2) Judgment of the Supreme Court

Article 40 of the Act on the Budgeting and Management of Subsidies (hereinafter referred to as the "Act") provides that "any person who has received subsidies or indirect subsidies by false application or other unlawful means or who has received subsidies or indirect subsidies with the knowledge of such fact shall be punished by imprisonment for not more than five years, or by a fine not exceeding five million won." The "false application or other unlawful means" here refers to the affirmative and passive acts that are recognized as unlawful by social norms, even though they are not entitled to subsidies under the law through normal procedures, which may affect the decision-making on the grant of subsidies. Meanwhile, this provision, unlike the fact that punishing a person who has received subsidies in fact, has no provision on the attempted subsidies under the law, and Article 42 of the Act provides separate penal provisions on the violation of individual procedures for the administration of subsidies, the purpose of the provision is to punish financial interests of the State as protecting the interest of the State, and it is not to punish the violation of the order or fairness of the administration of subsidies or individual administrative procedures, and thus, it is not legitimate to receive subsidies in a certain way beyond the amount of subsidies."

In light of the above legal principles and records, the above recognition and determination by the court below is just, and there is no violation of the rules of evidence and misapprehension of legal principles as to Article 40 of the Act as alleged in the grounds of appeal. This part of the grounds of appeal is without merit

B. The point of holding a business trip, a false statement of name, and an event

If a public official evades multiple business tripss and conducts an investigation in advance in accordance with the policy to promptly deal with civil petitions, and then prepares a business trip name statement under the conviction that the content of the business trip does not change, it cannot be deemed that there was a criminal intent to prepare a false public document if the date of the business trip is indicated as the date of preparation (see Supreme Court Decision 82Do3141, Dec. 27, 1983).

In the same purport, the court below found Defendant 2, 5, and 6 not guilty of the facts charged that Defendant 1 received an application for business from Defendant 1 on March 14, 1995 and entered the date of business trip into the business trip as of March 15, 199, and completed the business trip name statement as of March 14, 1995, on the following day, on the grounds that he had no criminal intent, and there is no violation of the rules of evidence against the rules of evidence. The argument in the grounds of appeal on this point is not acceptable.

3. Therefore, all appeals by Defendants 2, 3, and 4 and prosecutor are dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Han-gu (Presiding Justice)