국가보조금 부정수급에 대한 형법적 고찰

Article 2 of 「Act on the Subsidy」 defines the concept of subsidy, but this conceptual definition is not perfect, and limited to a theoretical level, so needs to be compensated. Regarding this concept of subsidy, for the purpose of restricting violations related to the delivery of subsidy and securing transparency as well, the conceptual definition and scope of subsidy have to become more concrete. Act on the Subsidy categorizes illegal receipt of national subsidy into the types of behavior in Article 40(defraudation of national subsidy) and those in Article 41(embezzlement of national subsidy). In addition, Article 42 of Act on the Subsidy is about the regulations to punish the infringement of administrative procedures, and Article 43 includes dual liability. Moreover, the illegal receipt of national subsidy can be punished according to Article 347(fraud), Clause 1, Article 355(embezzlement), and Article 356(professional embezzlement) of Criminal Law, and Clause 3 of 「Act of Aggravated Punishment for Specific Economic Crimes」(aggravated punishment of specific property crime). According to Article 40(defraudation of national subsidy) and Article 41(embezzlement of national subsidy) of Act on the Subsidy, the main agent to deliver it is limited as the government, so there's the legislative error that Act on the Subsidy is not applied to the case that a local government delivers it. Moreover, it can be a problem whether illegal receipt if national subsidy can be punished as the crime of fraud based on the Criminal Law. The conclusion regarding this matter can be different depending on whether property has been damaged or not, and on whether the intention of deception can be verified or not. It's the matter of whether benefit in return of those measured is required or not with regard to the nature of national subsidy when criminal fraud is applied. Yet, it's appropriate to interprete Act on the Subsidy as benefit in return is not required with regard to the delivery of subsidy. Therefore, a problem occurs that the criminal fraud cannot be applied to illegal receipt of national subsidy. The opinions about how to modify the legal system in order to efficiently regulate illegal receipt of national subsidy that has become a serious social problem are not harmonized. That is, there are the opinions that Act on the Subsidy, the basic law related to illegal receipt of national subsidy, and each law should be modified, and other opinions that the criminal regulation about subsidy fraud should be legislated newly. So far, it has taken a lot of time to expose and punish illegal receipt of national subsidy, so it has been regarded as a hidden crime, and so is the reality. When the statistics of the crime can be clearly draw un up from uncover to punishment, not only hidden crimes can be reduced, but also the types of crimes that have been already occurred can be examined precisely, and efficient ways to deal with them will be able to be established. Therefore, in spite some weaknesses, I support the new legislation of the regulation on criminal subsidy fraud. Separate investigation and survey has the shortcoming that an investigation can be duplicated and the know-how of each organization cannot be shared. In this respect, it's efficient for each organization to cooperate one another rather than work independently. Accordingly, the system to uncover and investigate unlawful acts must be set up that a government joint squad is established and operated so that investigation agencies and concerned administrative organizations can be run on a permanent basis.