사기
The prosecutor's appeal is dismissed.
1. Even if the J Housing Zone becomes final and conclusive based on the summary of the grounds for appeal, it cannot be predicted that a gas charging disposition plan is publicly announced on a certain land. Since an assembly and lawsuit demanding the cancellation of designation of the said Housing Zone had already been pending at the time of the conclusion of the instant sales contract, the aforementioned housing zone was not designated yet.
In addition, even if the victim purchased the land of this case as the development restriction zone, it was impossible to hold a gas charging installation permit due to the impossibility of land category and change of purpose of use for a period of two years.
The Defendant sold the instant land to L on October 21, 201 on the ground that it is difficult to permit the installation of gas charging stations on the instant land on October 21, 201, even though the Defendant had obtained permission to install gas charging stations within four to six months.
Therefore, the Defendant did not have the intent or ability to obtain permission for the installation of gas charging stations on the instant land at the time of entering into the instant sales contract. The Defendant’s obtaining permission for the installation of gas filling stations on the substitute land, which is not the instant land, is nothing more than the circumstances after the instant crime was committed. Meanwhile, in light of the Defendant’s obligation at the time of entering into the instant sales contract and the details of the use of the down payment paid by the injured party, even if it is impossible to obtain permission for
2. The intent of defraudation, which is a subjective constituent element of the judgment of fraud, has to be determined by comprehensively taking account of the objective circumstances, such as the Defendant’s financial history, environment, details of the crime, and the process of transaction (see Supreme Court Decision 2004Do3515, Dec. 10, 2004, etc.). The following circumstances that the lower court may be recognized by the judgment of the Seoul High Court Decision 2016No2893, Mar. 23, 2017, as well as the records of this case and the relevant criminal judgment, are as follows.