[1] In a case where a forestry cooperative, etc. that vicariously performed a trial under Article 14 of the former Forestry Act receives indirect subsidies from a local government’s local government’s financial resources, whether it constitutes “person who received indirect subsidies” under Article 40 of the Act on the Budgeting and Management of Subsidies (affirmative)

[2] The meaning of "the case of receiving subsidies by false application or other unlawful means" under Article 40 of the Act on the Budgeting and Management of Subsidies

[1] Article 40 of the Act on the Budgeting and Management of Subsidies, Article 14 of the former Forestry Act (amended by Act No. 7678 of Aug. 4, 2006) / [2] Article 40 of the Act on the Budgeting and Management of Subsidies

[2] Supreme Court Decision 99Do4101 Decided January 5, 2001 (Gong2001Sang, 469) Supreme Court Decision 2005Do573 Decided March 25, 2005, Supreme Court Decision 2006Du16984 Decided March 30, 2007 (Gong2007Sang, 632)

Defendant 1 and one other

Defendants

Attorney Lee Dong-ho

Suwon District Court Decision 2007No1351 Decided September 21, 2007

All appeals are dismissed. As regards Defendant 1, the number of days of detention included in the original sentence from among the days of detention after the appeal shall be included in the original sentence; the number of days remaining after subtracting the number of days of detention before the filing of the appeal to be included in the original sentence from among the days of detention after the appeal

The grounds of appeal are examined.

1. As to Defendant 1’s appeal

A. Article 2 subparag. 1 of the Act on the Budgeting and Management of Subsidies (hereinafter “Subsidy Act”) provides that the term “subsidies” means subsidies, charges, or other benefits provided by the State for the purpose of creating or providing financial assistance to affairs or projects conducted by persons other than the State, which are determined by the Presidential Decree. Article 4 provides that “indirect subsidies” means benefits that are granted by persons other than the State without receiving corresponding subsidies from all or part of the financial resources for the purpose of granting such subsidies, and Article 9 of the same Act, Article 4(1) and [Attachment 1] of the Enforcement Decree of the Forestry Act provides that if such persons receive subsidies from the State as financial resources for the purpose of granting subsidies from the State, they shall be punished as one of the projects conducted by local governments that become eligible for subsidies from the State, the Act provides that the State may, as a matter of course, not only grant subsidies from the State but also grant subsidies from the State to persons other than the State, by means of afforestation or alteration of subsidies from the State, Article 14(1) and (2) of the Enforcement Decree of the Forestry Act provides that such subsidies shall not be granted by the State.

The court below acknowledged the facts as stated in its reasoning based on its adopted evidence, and held that the subsidy of this case constitutes an indirect subsidy under Article 2 subparagraph 4 of the Subsidy Act, which is paid by the Docheon-gun with subsidies from the National Treasury, etc., and that the same applies to the other party to whom the subsidy of this case was granted, who is not a forest owner, but a forestry cooperative that conducts a trial on behalf of the head of the Si/Gun under Article 14 of the Forestry Act, upon notification of the commencement of the work by proxy under Article 14 of the Forestry Act, is just in light of the aforementioned legal principles and records, and there is no error in the misapprehension of legal principles as to

B. Article 40 of the Subsidy Act provides that "any person who has received subsidies or indirect subsidies by false application or other unlawful means or any person 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." Here, "false application or other unlawful means" refers to active and passive acts that may affect the decision-making on the grant of subsidies by deceptive means or other unlawful means, although they are not entitled to subsidies by the law, through normal procedures. Meanwhile, "the case of receiving subsidies by improper means" refers to not only the case of receiving subsidies for affairs or projects that are not subject to the grant of subsidies, but also the case of receiving subsidies in excess of the amount to be granted by the relevant projects, etc. (see Supreme Court Decisions 9Do4101, Jan. 5, 2001; 2005Do573, Mar. 25, 2005).

The court below acknowledged the facts as stated in its reasoning based on its adopted evidence, and found the defendant guilty of the charges of this case that the defendant received subsidies by false application or other unlawful means in light of the following facts: the court below's above recognition and determination is just, and there is no violation of the rules of evidence or misapprehension of the legal principles as to the interpretation and application of Article 40 of the Subsidy Act, and there is no error in the misapprehension of the rules of evidence or the misapprehension of the legal principles as to the interpretation and application of Article 40 of the Subsidy Act.

2. As to Defendant 2’s appeal

Defendant 2 did not submit a statement of grounds for appeal within the statutory period, and the petition of appeal does not state the grounds therefor, and thus, Defendant 2 shall dismiss the appeal by decision pursuant to Article 380 of the Criminal Procedure Act. However, the appeal shall be dismissed by decision en bloc with Defendant 1’s appeal.

3. Therefore, all appeals are dismissed, and part of the detention days after the appeal is included in the original sentence. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Si-hwan (Presiding Justice)