The meaning of “the grant of subsidies by false application or other unlawful means” under Article 40 of the former Act on the Budgeting and Management of Subsidies

Subparagraph 1 of Article 2 of the former Act on the Budgeting and Management of Subsidies (Amended by Act No. 10898, Jul. 25, 201; see Article 2 subparagraph 1 of the current Subsidy Management Act), Article 40 (see Article 40 of the current Subsidy Management Act), and Article 42 (see Article 42 of the current Subsidy Management Act)

Supreme Court Decision 99Do4101 Decided January 5, 2001 (Gong2001Sang, 469) Supreme Court Decision 2006Do8870 Decided December 27, 2007, Supreme Court Decision 2009Do8751 Decided November 12, 2009, Supreme Court Decision 2009Do8769 Decided March 25, 2010

Defendant

Defendant

Attorney Ahn Byung-hee

Changwon District Court Decision 2013No151 decided May 24, 2013

The conviction portion of the judgment of the court below is reversed, and that part of the case is remanded to the Changwon District Court Panel Division.

The defendant and defense counsel's grounds of appeal are also examined.

Article 40 of the former Act on the Budgeting and Management of Subsidies (amended by Act No. 10898, Jul. 25, 201; hereinafter “the Subsidy Management Act”) provides that “any false application or other unlawful means” refers to affirmative and passive acts that may affect the decision-making on granting of subsidies by deceptive means or other acts deemed unlawful by social norms, even though the payment of subsidies under the same Act is not possible through normal procedures. In addition, the above provision punishing cases where subsidies are actually received, and the attempts are not prescribed in the same Act, and Article 42 of the same Act provides separate penal regulations on the violation of the procedures for individual subsidies. In light of the above, the purpose of the provision is to punish the violation of the State’s financial interest in terms of the benefit protected by the law, and it does not punish the violation of the public order or fairness of the administration of subsidies or the violation of individual procedures. Thus, even if the “in the case of receiving subsidies by improper means,” the provision does not constitute a legitimate provision on the amount of subsidies granted in excess of the amount of subsidies granted.

According to the records, ○○○○○○○○○○○○○○○○○○○○○○○○○○○ Center (hereinafter referred to as “○○○○○○○○○○○○○○○”). Since 208, ○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○ Party entrusted the instant △△△△△△△○○○○○○○○○○ Center with the entire ○○○○○○○ Foundation (hereinafter referred to as the “○○○○○○”). The instant ○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○”). The instant ○○○○○○ Party was not a party to the instant ○○○○○○ Party.

Examining these facts in light of the legal principles as seen earlier, even if a self-support employee of ○○○○○○ Center worked with Nonindicted Party 1, and Nonindicted Party 1 operated the instant cargo vehicle for ○○ Community, it is not for ○○○ Center to carry out the instant house repair business that was wholly entrusted and received a subsidy in excess of the reasonable amount. Thus, even if there is a somewhat defect in the process, the Defendant’s receipt of the subsidy constitutes a case where the Defendant received a legitimate amount of subsidy for the business eligible to receive the subsidy in its substance, and thus, it is reasonable to deem that it does not constitute a case where the subsidy was received by false application or by other unlawful means.

Nevertheless, the lower court found the Defendant guilty of this part of the charges on the grounds that the Defendant received the subsidies equivalent to the personnel expenses of Nonindicted 2 and two others by false application or other unlawful means, and the oil expenses of the instant cargo vehicle. In so doing, the lower court erred by misapprehending the legal doctrine on Article 40 of the Subsidy Management Act, thereby adversely affecting the conclusion of the judgment.

Therefore, without further proceeding to decide on the remaining grounds of appeal, the guilty portion of the judgment below is reversed, and this part of the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Yong-deok (Presiding Justice)