[1] The elements for establishing a lawsuit fraud crime

[2] The case where a crime of fraud by an indirect crime is established by means of an indirect crime

[3] In a case where an agreement with no agreement exists, in addition to the content of the agreement, Eul transferred the borrowed loan claim against Eul on the basis of the nominal loan certificate, and Byung had Byung know of such circumstance file a lawsuit against Eul for the claim against Eul, the case holding that Eul's act constitutes a crime of indirect criminal fraud using Byung as an instrument

[1] A lawsuit fraud is an offense that acquires the other party's property or property interest by deceiving a court in favor of himself/herself. If a defendant is found guilty, it would inevitably lead to an assertion favorable to himself/herself and the chilling of the civil trial system that is entitled to remedy remedy through a lawsuit. Thus, unless it is evident that a crime is established, unless it is evident that the defendant objectively shows the difference in the facts, and that he/she clearly knows that his/her assertion is false or that he/she intends to manipulate evidence, it shall not be found guilty, and even if his/her assertion is different from the facts in the lawsuit, it does not constitute fraud. The act of filing a lawsuit merely recognizing a fact, or believing that he/she believed that he/she exists a right that does not exist due to a mistake in legal assessment, and even if his/her assertion in the lawsuit is somewhat different, it cannot be deemed that there is a fraud. Moreover, the manipulation of evidence as referred to in the lawsuit fraud means an act of creating a false disposal document, etc. or inducing testimony of a false witness, etc.

[2] In a case where a judgment favorable to himself/herself was rendered by using a third party who could not be objectively perceived that the arguments in the lawsuit are different from facts and that the evidence is fabricated, thereby leading him/her to become a party to the lawsuit, and thereby inducing the court to acquire the property or profits from the property of the other party to the lawsuit, the crime of fraud in the form of indirect principal offense is established.

[3] In a case where Gap had a certificate of borrowing Eul's name, but there is a dispute over Eul with regard to the existence of the claim, Eul newly forged a certificate of borrowing 2% per month, which added the terms of the interest rate to Eul's original 2% per annum, and based on this, Eul transferred the principal of the loan and the amount of 25 million won per annum to Byung who is the creditor of his wife, and let Byung file a lawsuit claiming the amount of the loan against Eul, the case holding that Eul's act as to the remaining amount of the loan excluding the amount of money equivalent to the statutory delay damages among the amount of 25 million won per annum 25 million won constitutes a lawsuit fraud in the form of indirect crime by using Byung

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

[1] Supreme Court Decision 2003Do373 Decided May 16, 2003 (Gong2003Sang, 1415) Supreme Court Decision 2003Do7124 Decided June 25, 2004 (Gong2004Ha, 1277) Supreme Court Decision 2006Do2561 Decided September 22, 2006

Defendant

Prosecutor

Suwon District Court Decision 2005No3908 decided May 11, 2006

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

We examine the grounds of appeal.

1. As to the aiding and abetting private documents

In comparison with the reasoning of the judgment of the court below and the judgment of the court of first instance cited by the court below, it is not sufficient to recognize that the time for preparing the loan certificate of this case was around September 1, 2003, specified in this part of the facts charged, and there is no other evidence to acknowledge this differently. Thus, it is proper to maintain the conclusion of the court of first instance which acquitted the defendant on the ground that this part of the facts charged constitutes a case where there is no proof as to the date and time of the crime, and there is no

2. As to the attempted fraud

A. The facts charged and the judgment of the court below

The summary of the charges of this case changed through legitimate procedure at the court below is that the defendant, who was the representative director of the non-indicted 2 corporation (hereinafter referred to as the "non-indicted 2 corporation"), was not entitled to transfer 20 million won to the non-indicted 1 victim because he did not lend 20 million won to the non-indicted 1, but the non-indicted 2's non-indicted 2's non-indicted 2's non-indicted 1's non-indicted 2's non-indicted 2's non-indicted 9's non-indicted 2's non-indicted 2's non-indicted 2's non-indicted 2's non-indicted 1's non-indicted 2's non-indicted 2's non-indicted 3's non-indicted 1's non-indicted 2's non-indicted 2's non-indicted 2's non-indicted 9's non-indicted 2's non-indicted 2's non-indicted 2's non-indicted 10's non-indicted 25'.

The court below found the defendant not guilty of the above facts charged on the ground that the defendant's principal purpose is to allow the non-indicted 2 to file a loan lawsuit against the non-indicted 1 on behalf of the defendant, but if the defendant transferred the above claim to the non-indicted 2 for the repayment of the existing loan claim against the non-indicted 2, and the non-indicted 2 acquired the above claim to obtain the payment of the existing loan claim against the defendant, the non-indicted 2 attempted to file a lawsuit claiming the above transfer money for his own interest and to obtain a favorable judgment through the attorney appointed by himself. Thus, it cannot be deemed that the defendant merely was in the status used by the defendant, the transferor of the claim, and the evidence submitted by the prosecutor alone is recognized to control the act of the non-indicted 2's lawsuit suit against the defendant, and the non-indicted 2 is merely a litigation party in the form merely performing the litigation according to the defendant's direction, or it is insufficient to recognize that the transfer of the claim was made mainly between the defendant and the non-indicted 2.

B. Judgment of the Supreme Court

A fraud in a lawsuit is a crime of acquiring the other party's property or property benefits by deceiving the court in favor of himself/herself. If a defendant is found guilty, any person would have any choice to assert favorable claims against himself/herself and to chill the civil trial system that can receive remedy through a lawsuit. Thus, unless it is evident that a crime is established, unless it is found that the defendant objectively shows different arguments in the lawsuit and that he/she clearly knows that he/she is false or attempted to manipulate evidence, he/she shall not be found guilty, and it does not constitute fraud merely mean the act of falsely recognizing facts or that he/she has a right that does not exist due to any mistake in legal assessment, even though his/her assertion in the lawsuit is somewhat different, it cannot be deemed that there is a fraud if it is merely an exaggeration expression to believe that there is a right exists, and also, the manipulation of evidence in a lawsuit fraud refers to the act of creating a false disposal document, etc. or manipulating objective and third party evidence by inducing a witness's false testimony, etc. (see, e.g., Supreme Court Decision 2003Do53646. 2636.

In addition, according to Article 34(1) of the Criminal Act that provides for indirect crimes, a person who commits a crime by instigating or aiding and abetting another person who is not punished for a certain act or who is punished as an offender through negligence shall be punished according to the same as aiding and abetting and abetting. Thus, a person who causes another person to commit a crime by using another person who does not have awareness of criminal facts to commit a crime shall be punished according to the same as aiding and abetting and abetting. Thus, a person who causes another person to commit a crime by using another person who does not have awareness of criminal facts falls under “the person who instigated and abetted another person who is not punished for a certain act,” and shall be liable for such

Therefore, in a case where a third party who could not know that the arguments in the lawsuit are objectively apparent or fabricated in order to obtain a judgment favorable to himself/herself, thereby causing him/her to become a party to the lawsuit, and in a case where he/she seeks to acquire the other party's property or pecuniary advantage by deceiving the court, the crime of fraud in the lawsuit is established by the form of indirect principal offender.

원심과 제1심이 적법하게 채용한 증거들에 의하면, 공소외 회사가 신축한 상가 건물(이하 ‘이 사건 건물’이라 한다) 내의 1층 152호 점포(이하 ‘이 사건 점포’라 한다)에 대하여 분양계약을 체결하고 그 분양대금의 계약금 및 중도금 명목으로 공소외 회사에 합계 25,307,500원을 지급한 공소외 1은 1996. 5. 29.경 이 사건 건물의 공사가 지연됨에 따른 분양계약 해제 및 분양대금 반환 문제와 관련하여 당시 공소외 회사의 대표이사로 있던 공소외 3과 말다툼하다가 폭행을 당하여 상해를 입게 된 사실, 이와 같은 폭행사건을 이유로 공소외 1은 1998. 4. 16. 서울지방법원에 공소외 회사를 상대로 한 손해배상 청구소송을 제기하였는데, 위 소송이 진행 중이던 1998. 8. 20. 피고인은 당시 공소외 1의 남편으로서 그녀를 대리한 공소외 4에게 2,000만 원을 교부하고 공소외 4로부터 “금액: 일금 이천만 원정. 상기 금액을 공소외 회사로부터 정히 차용함. 1998. 8. 20. 차용인: 공소외 1. 공소외 회사 대표이사 귀하”라는 내용이 기재된 공소외 1 명의의 차용증(이하 ‘원 차용증’이라 한다)과 위 2,000만 원에 대하여 이 사건 점포를 담보로 제공한다는 내용의 공소외 1 명의의 이행각서를 작성·교부받은 사실, 이후 위 민사소송에서 1998. 12. 11. 공소외 회사는 공소외 1에게 181,029,529원( 공소외 1의 가족에 대한 위자료까지 포함한 금액이다) 및 이에 대한 법정지연손해금을 지급할 것을 명하는 판결이 선고되었고, 1999. 1. 6. 항소기간의 도과로 위 판결이 그대로 확정되었으며, 이후에도 피고인과 공소외 1 사이에는 위 확정판결에 기한 손해배상금의 지급문제, 공소외 1이 이 사건 건물의 부지와 일부 점포에 대하여 설정해 놓은 가압류의 해제 문제 등을 둘러싸고 분쟁이 지속된 사실, 그런데 원 차용증이 작성된 이후인 어느 날 피고인은 위와 같이 공소외 4에게 2,000만 원을 교부함에 있어 위 금원에 대한 이자를 지급받기로 약정한 사실이 없음에도 공소외 1 또는 공소외 4의 동의 없이 월 2부의 이자 및 이 사건 점포를 차용금에 대한 담보로 제공한다는 내용을 기재한 공소외 1 명의의 이 사건 차용증을 작성한 사실, 그 후 피고인은 2003. 9. 1.경 피고인의 처가 인테리어 사업과 관련하여 3,500만 원의 채무를 부담하고 있던 공소외 2에게 이 사건 차용증을 보여주며 “ 공소외 1이 전 대표이사로부터 폭행당하여 병원에 입원하게 되었을 때 병원비가 없다고 하므로 피고인이 공소외 4에게 2,000만 원을 빌려 주면서 이 사건 차용증을 받아두었다. 이렇게 공소외 1로부터 돈을 받을 것이 있으니 나의 채권을 양도받아서 소송을 제기하여서라도 돈을 받으라”고 말하면서 이 사건 차용증상의 채권원리금 4,500만 원(원금 2,000만 원 + 약정이자 2,500만 원)을 양도하는 내용의 채권양도계약서를 작성하여 주고 이 사건 차용증을 공소외 2에게 교부한 다음 2003. 11. 29.경 공소외 1에게 위 채권양도의 통지를 한 사실, 그 무렵 피고인은 공소외 2와 함께 법무법인 창조의 공소외 5 변호사를 찾아가서 공소외 1을 상대로 소송을 제기하는 문제를 상담하였는바, 이 때 위 변호사는 “ 공소외 1이 위 손해배상채권에 기한 상계처리 주장을 하게 되면 소송을 제기해 보아야 돈을 받을 길이 없다고 하면서 소송을 제기하지 말라”는 취지로 만류하였음에도 피고인은 소송을 강행하여 달라고 요구한 사실, 공소외 2는 피고인과의 친분관계상 공소외 1에 대한 권리를 주장하는 피고인의 말과 이 사건 차용증의 기재 내용을 그대로 믿은 나머지 공소외 1에게 이 사건 차용증 내용의 진위를 확인해 보거나 채권양수금의 지급을 요구하여 보지도 아니한 채 피고인으로부터 양도받은 채권에 기초하여 2003. 12. 12. 공소외 1을 상대로 양수금 청구소송을 제기하였고, 얼마 후 위 공소외 5 변호사가 공소외 2의 대리인으로 선임되어 위 소송을 수행한 사실을 알 수 있다. 한편, 기록에 의하면 위와 같이 공소외 1과 공소외 회사 사이의 손해배상소송이 진행 중이던 1998. 8. 20. 피고인이 공소외 4에게 2,000만 원을 교부한 이유에 대하여, 피고인은 공소외 1이 공소외 회사의 전 대표이사에게 폭행당한 이후로 병원치료비도 없고 카드사용대금도 갚지 못하는 등으로 생계가 막막하다고 공소외 4가 읍소하면서 돈을 빌려달라고 사정하여 위 2,000만 원을 대여한 것이라고 주장하는 반면, 공소외 1과 공소외 4는 위 손해배상채권의 보전을 위하여 이 사건 건물 내 점포에 대하여 가압류를 하려고 하였더니 피고인이 하지 말라고 하면서 소송비용 보전 명목으로 교부한 돈인데, 당시 피고인이 법인 내부의 회계처리상의 편의를 위하여 차용 형식으로 서류를 해 달라고 요청하여 원 차용증과 이행각서를 작성해 준 것에 불과하다고 다툰다.

If the facts are the same, the above claim for acquisition money, which was filed in the name of Nonindicted 2, can be deemed to have been filed by the Defendant on the ground that the Defendant, who is entirely believed the Defendant’s speech regarding the substantive legal relationship between Nonindicted Company 1 and Nonindicted Company 1, was the Plaintiff.

Pursuant to the above part of the claim amount in the above lawsuit, even if the non-indicted 1 made a statement regarding the name of the above KRW 20 million in the above claim amount, it is the money of the nature that the non-indicted 1 paid in advance to the non-indicted 1 before the judgment became final and conclusive, and ultimately, the non-indicted 1 should be deducted from the debt amount that the non-indicted 1 should pay to the non-indicted 1. Therefore, as long as the non-indicted 1 has the right to claim deduction of the above KRW 20 million in the amount of the claim amount in the above claim amount, the non-indicted 1 had the right to claim the above 20 million in the above amount of the claim amount in the above claim amount, which is the above 20 million won in the above claim amount in the above claim amount, the non-indicted 1 made a mistake in legal evaluation and made it difficult to view that the non-indicted 1 attempted to deceive the court through the assertion and manipulation of evidence, and there is no reason to prove the above part of the judgment below as to the non-indicted 20 in the lawsuit.

However, with respect to the claim amount in the above claim amount amount, the agreed interest rate of KRW 25 million and the claim amount at the rate of KRW 20 million per month from September 1, 2003, the defendant can sufficiently be recognized to have filed the lawsuit against Non-Indicted 1 using Non-Indicted 2, who is not aware that the loan amount in this case was forged and at least the agreed interest rate of the agreed interest out of the contents of the loan certificate was false, while he clearly recognizes that it was false.

However, if the title of the above 20 million won delivered by the Defendant to Nonindicted Party 1 reserved the right to request the return of the non-indicted company as the loan, then the amount equivalent to the statutory delay damages, out of the amount claimed under the name of the agreement, shall not be deemed to be subject to the litigation fraud deceiving the court by false and fabricated evidence. Thus, in this case, the litigation fraud shall be deemed to be only established only for the portion exceeding the statutory delay damages out of the amount claimed under the name of the agreement.

Therefore, the court below should have determined the facts as to what name the above KRW 20 million was given, and based on this, should have determined whether the part of the amount claimed as the parties to the above claim is all or part of the lawsuit fraud. However, on the grounds as seen earlier, the court below concluded that the whole part of the claim by the above agreement is not a crime of fraud in the form of an indirect principal, on the grounds as seen earlier. The court below erred in the misapprehension of legal principles as to indirect principal and lawsuit fraud, or in the misapprehension of facts against the rules of evidence, thereby adversely affecting the conclusion of the judgment. The ground of appeal pointing this out is with merit.

3. Conclusion

Therefore, the part of the judgment of the court below regarding attempted fraud is reversed in part of the judgment below, but it is inevitable to reverse all of the remaining parts because it constitutes a crime. Therefore, the part concerning attempted fraud among the judgment below is reversed, and this part of the case is remanded to the court below for further proceedings consistent with this Opinion. The remaining appeal is dismissed and it is so decided as per Disposition by the assent of all participating Justices.

Justices Lee Hong-hoon (Presiding Justice)