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The judgment of the court below is reversed, and the case is remanded to Busan District Court Panel Division.
Reasons
The grounds of appeal are examined.
1. Examining the reasoning of the lower judgment in light of the evidence duly admitted, the lower court’s judgment that found Defendant C guilty of fraud is justifiable. In so doing, it did not err by misapprehending the legal doctrine or exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules, contrary to what is alleged in the grounds of appeal.
2. As to the Prosecutor’s Grounds of Appeal
A. Article 40 of the former Act on the Budgeting and Management of Subsidies (hereinafter “Subsidy Act”) provides that “Any person who is granted subsidies or indirect subsidies by false application or other unlawful means, or any person who knowingly grants subsidies or indirect subsidies, shall be punished by imprisonment for not more than five years or by a fine not exceeding five million won.”
In this context, the term “false application or other unlawful means” means the active and passive act, even though a person is unable to receive a subsidy in accordance with normal procedures, which may affect the decision-making on the grant of a subsidy, such as deceptive schemes and other acts which are considered unlawful by social norms, and “the grant of a subsidy by improper means” means the grant of a subsidy in excess of the amount to be paid or to be granted for affairs or projects which are not subject to the grant of a subsidy.
(2) As to the amount of subsidies granted in excess of the amount to be granted in the pertinent project, etc. by such unlawful means as above, even if the amount of subsidies does not exceed the amount corresponding to the true subsidy program, and the amount of subsidies granted in respect of the project, which would have been recognized as the subsidy program if the application was filed, does not exceed the total amount of subsidies granted in respect of the project, which would have been recognized as the subsidy program.