국가보조금사기에 대한 형법적 대응방안

Rendering Government subsidy is the administrative behavior of support by the Nation based on taxpayers’ money. As Government subsidy is financed by tax revenues from citizen, failure in successful management thereof would lead to leakage in public finance and cause burden to families in the nation. However, recently unqualified recipient cases are increasing due to loopholes in management of Government subsidy. This paper centered discussion on swindling behaviors among unqualified recipients. Swindling of subsidy may be subject to application of fraud crime punishment pursuant to Criminal Law, or punishment regulations by Act on the Budgeting and Management of Subsidies and other individual law. Judicial precedent applies fraud punishment pursuant to Criminal Law or subsidy fraud punishment regulation. However, modifications of related laws are required due to lack of clear guidelines. The critical issue here is whether fraud crime is applicable in swindling of subsidies case. In other word, this issue boils down to whether fraud crime pursuant to Criminal Law, Article 327 may be applicable, despite of the stipulations of punishing swindling behavior of Government subsidy pursuant to Act on the Budgeting and Management of Subsidies. If fraud crime pursuant to Criminal Law is not properly applicable to swindling behavior of subsidies, there is need to consider whether fraud crime should be inserted in Criminal Law, or whether the issue may be resolved by amendment of Act on the Budgeting and Management of Subsidies as well as application of individual law. Firstly, in consideration of illegal aspect of behavior and result as well as policy purpose of subsidy, it looks not desirable to apply fraud crime to unqualified recipient of subsidiary by fraud. Meanwhile, the view supporting insertion of subsidy fraud crime is not suitable either. The reason is new clause is not expected to bring deterrence effect differentiated with common people, and is expected to cause confusion in interpretation by complicated constitution requirements. And also insertion of subsidy fraud crime cannot be fundamental solution of the issue due to current negligence of subsidy embezzlement as one type of unqualified recipients. In conclusion, this paper presented amendment of Act on the Budgeting and Management of Subsidies and individual law as solution by de lege ferenda.