[1] Where the exercise of rights by deception constitutes a crime of fraud

[2] In a case where the defendants, including the representative director of a farming association corporation, prepared and submitted false evidence of payment of wages in relation to the progress of a new construction project for a mushroom cultivation company and acquired subsidies from a local government, the case affirming the judgment below that the defendants' act constitutes a deception because it goes beyond the scope permitted by social norms as a means of exercising rights

[1] Article 347 of the Criminal Act / [2] Articles 30 and 347 (1) of the Criminal Act

[1] Supreme Court Decision 2003Do4914 Decided December 26, 2003 (Gong2004Sang, 298) Supreme Court Decision 2006Do2371 Decided June 15, 2007

Defendant 1 and one other

Defendants

Law Firm LLC et al.

Changwon District Court Decision 2010No1620 decided November 4, 2010

All appeals are dismissed.

The grounds of appeal are examined.

The deception as a requirement for fraud refers to all affirmative and passive acts that have to observe each other in a property transaction. It does not necessarily require that such deception is related to the important part of a juristic act. It is sufficient to determine the basic facts of the judgment to allow an actor to perform a property disposal act he wishes by omitting the other party by mistake. The criminal intent of fraud, which is a subjective constituent element of fraud, should be determined by taking into account the objective circumstances such as the re-power of the accused before and after the crime, the environment, the details and details of the crime, the process of the transaction, and the process of the transaction (see, e.g., Supreme Court Decision 2009Do7459, Oct. 15, 2009). In addition, in the event of exercise of right by deception as a means of deception, if such deception is to the extent that it is not acceptable as a means of exercise of right by social norms, the exercise of right constitutes fraud (see, e.g., Supreme Court Decision 2016Do3716, Jun. 27, 2015).

According to the reasoning of the judgment below, the court below, after compiling the duly admitted evidence, found facts as stated in its reasoning, and found out the following facts. In order for the non-indicted farming association corporation (hereinafter "the corporation of this case") to receive subsidies equivalent to 50% of the expenditure expenses provided by the Gyeongnam-do and Yangyang-gun in carrying out a new project for the construction of a mushroom growing company (hereinafter "the project of this case"), the court below determined to the purport that the defendants' act constitutes a fraudulent act, as a whole, since the completion of the project of this case and the documents evidencing the actual payment amount were submitted as evidence of the expenditure expenses, which form the basis for the calculation of subsidies. However, the court below held that the defendants, who were in the position of the representative director of the corporation of this case or the factory of this case, conspired to prepare documents evidencing the payment of wages, such as false labor expense payment records, receipts, deposit certificates, etc., together with other documents evidencing the payment of expenses, and submitted them to the public official in charge of the Korea Development Agency.

In light of the above legal principles and records, the above determination by the court below is just and acceptable, and contrary to what is alleged in the grounds of appeal, it cannot be deemed that there was any illegality by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules or by misapprehending the legal principles

Therefore, all appeals are dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Poe-dae (Presiding Justice)