부산지방법원 2017.07.21 2017노617



The defendant's appeal is dismissed.


1. Summary of grounds for appeal;

A. The court below found the defendant guilty of the facts charged in this case even though the defendant was guilty because the defendant used the victim's credit card with the victim's permission and had the intent and ability to repay the credit card price, and therefore the defendant did not have a criminal intent to commit fraud. The judgment of the court below is erroneous in the misapprehension of facts

B. The punishment sentenced by the lower court (two years of imprisonment with prison labor for a period of eight months) is too unreasonable.

2. Determination

A. The criminal intent of defraudation, which is a subjective constituent element of the crime of fraud as to the assertion of mistake of facts, shall be determined by taking into account the objective circumstances such as the defendant's financial history, environment, details of the crime, and process of transaction before and after the crime, unless the defendant is led to his confession. Since the crime of fraud is established by dolusorous intentional negligence, it refers to the case where the possibility of the occurrence of the crime of negligence is uncertain as a subjective constituent element of the constituent element of the crime, and it is acceptable as it refers to the case where

In order to determine the possibility of the occurrence of a crime, not only has the awareness of the possibility of the occurrence of the crime, but also there has been an internal intent to allow the risk of the crime. Furthermore, it is not dependent on the statement of the offender whether the offender was aware of the possibility of the crime, but also on the basis of specific circumstances, such as the form of the act performed outside and the situation of the act, etc., it is necessary to confirm the psychological condition from the offender’s standpoint (see, e.g., Supreme Court Decision 2007Do1214, Feb. 26, 2009). The following circumstances recognized by the evidence duly adopted and investigated by the lower court, namely, the Defendant, at the time of lending a credit card from a victim to the investigative agency, money exceeding KRW 100 million in total from many persons.