[1] Strictness of the application of lawsuit fraud crime

[2] Requirements for recognizing so-called litigation fraud as fraud

[3] The case holding that no lawsuit fraud was committed

[1] A litigation fraud is an offense involving acquiring the other party’s property or pecuniary advantage by deceiving a court in favor of himself/herself. The punishment of it is inevitable to inevitably lead to the chilling of the civil trial system that any person may make favorable arguments to himself/herself and receive remedy through a lawsuit. Thus, unless the defendant has acknowledged a crime, he/she shall not be easily convicted of the defendant, unless there is any trace that the facts different from the facts are objectively apparent, or that the defendant has objectively recognized that his/her arguments in the lawsuit are clearly false, or that the defendant has attempted to manipulate evidence.

[2] In order to establish a lawsuit fraud, it is insufficient to say that there is no claim as alleged at the time of the lawsuit, and it is necessary to recognize the court as deceiving the court by making a false assertion and proof even if it is well known that there is no claim in the claim, and the act of filing a lawsuit is not a crime of fraud when it is believed that there is no claim due to a mistake of facts or a mistake of legal assessment.

[3] The case holding that no lawsuit fraud is established

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

[1] Supreme Court Decision 96Do266 delivered on February 25, 1992 (Gong1992, 1208) Supreme Court Decision 96Do242 delivered on July 22, 1997 (Gong1997Ha, 2592) Supreme Court Decision 97Do2786 delivered on February 27, 1998 (Gong1998Sang, 963), Supreme Court Decision 98Do1949 delivered on September 8, 1998 (Gong198Ha, 2476 delivered on June 28, 201), Supreme Court Decision 2001Do1610 delivered on June 29, 209 (Gong2002Ha, 185), Supreme Court Decision 209Do3949 delivered on June 29, 208 (Gong2094, 209Do2949810 delivered on December 10, 2002)

Defendant

Defendant

Cheongju District Court Decision 2002No340 delivered on December 30, 2002

The judgment of the court below is reversed, and the case is remanded to Cheongju District Court Panel Division.

1. The judgment of the court below

The court below determined on March 5, 199 that the highest order of 3.5 million won was issued to the person who borrowed 3.5 million won or more from the person who borrowed 3.5 million won, after deducting interest from the person who borrowed 3.5 million won, and issued a promissory note or loan with a face value of 3.5 million won or more to the person who borrowed 3.5 million won or more, and that the defendant issued the highest order of 9.5 million won to the person who borrowed 3.5 million won or more to the person who borrowed 3.5 billion won or more to the person who borrowed 4.5 billion won or more to the person who borrowed 5.5 billion won or more to the person who borrowed 3.5 billion won or more to the person who borrowed 5.5 billion won or more, and that the defendant paid 3.5 million won or more to the person who borrowed 2.5 billion won or more to the person who borrowed 3.5 billion won or more from the person who received 9.5 billion won or more from the person who borrowed 20.7 billion won or more to the person who borrowed 20.7.

2. The judgment of this Court

A. A lawsuit fraud is an offense involving deceiving a court to acquire the other party's property or pecuniary advantage by obtaining a favorable judgment. The punishment inevitably causes a chilling of the civil trial system that anyone may seek favorable benefit to himself/herself and receive remedy through a lawsuit. Thus, except in cases where the defendant acknowledged a crime, unless the facts in the lawsuit are objectively apparent or the defendant clearly knows false arguments in the lawsuit or there is a trace of his/her attempt to manipulate evidence, it shall not be easily found guilty (see, e.g., Supreme Court Decisions 96Do2422, Jul. 22, 1997; 98Do1949, Sept. 8, 1998; 2001Do1610, Jun. 28, 2002).

B. According to the records, on March 5, 199, the maximum order of the loan-related documents of this case was delivered to the Jeon Chang-woo, after deducting 3,50,000 won from the loan-related documents of this case, which was 3,50,000 won prior to the date. The loan-related documents of this case were delivered to the defendant prior to the next day. The loan-related documents of this case were delivered to the defendant. The face of promissorysory notes with the face value of 3,50,000 won in face value of 3,50,000 won in face value issued by the highest order of the defendant among the loan-related documents of this case were endorsed by the delivery of the loan-related documents of this case to the defendant prior to the last 3,50,000 won. The remaining documents are not indicated in the creditor or the lender's statement or they were in public space. Thus, it is unreasonable to determine that the loan-related documents of this case were established between the defendant and the last 3, unless there are special circumstances to the defendant prior to the loan-related documents of this case.

Therefore, even if the defendant prepared and submitted an application for payment order as if he had a direct loan claim in the order of the highest order and received the loan interest and the expense amount of five million won from the order of the highest order after receiving the payment order as seen earlier, it is difficult to see that the defendant's act was not done as part of his legitimate exercise of right in its nature, but as he attempted to deceive the court through the assertion and evidence manipulation, it is difficult to view that the defendant's assertion in the lawsuit constitutes a litigation fraud because it is objectively apparent different from the facts, and even if he knows well that there was no right to claim in the lawsuit at the time of the application for payment order, it cannot be said that there was a perception that the defendant deceivings the court by false assertion and proof.

Nevertheless, the judgment of the court below which found the defendant guilty of the charge of fraud is erroneous in the misunderstanding of the rules of evidence or misunderstanding the legal principles of litigation fraud, which affected the conclusion of the judgment.

3. Conclusion

Therefore, the part of the judgment of the court below which found the defendant guilty shall be reversed. Since the court below imposed a single punishment by treating the defendant as concurrent crimes under the former part of Article 37 of the Criminal Act, the whole judgment of the court below is reversed and 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 Son Ji-yol (Presiding Justice)