특정경제범죄가중처벌등에관한법률위반(사기)
The judgment of the court below is reversed.
The prosecutor's appeal is dismissed.
The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).
1. The latter part of Article 262(4) of the Criminal Procedure Act provides that a prosecution may not be instituted against a case for which a decision to dismiss an application for adjudication has become final and conclusive unless other important evidence is found;
Here, “the discovery of other important evidence” refers to a case where there is sufficient evidence to the extent that the evidence newly discovered was added to the newly discovered evidence at the time of the decision to dismiss an application for adjudication, and it does not constitute a case where there is sufficient evidence to the extent that there is a doubt about the legitimacy of the decision to dismiss the application for adjudication or that there is a need to proceed in criminal proceedings in order to protect the rights of victims
In addition, the recognition and determination of facts in the relevant civil judgment can not be said to be a new evidence that is the basis of the recognition and determination of such facts, aside from the fact that the evidence that served as the basis of the recognition and determination of such facts can correspond to the newly discovered evidence.
2. Review of the reasoning of the lower judgment and the record reveals the following facts.
A. On April 2007, the complainant filed a complaint with the prosecution against the defendant on the ground of the crime that the defendant, even though the defendant did not have the intent or ability to perform his/her obligation to pay the remainder under the sales contract for the apartment owned by the complainants (hereinafter “the instant sales contract”), he/she deceivings the complainant to purchase the said apartment and complete the registration of the transfer of ownership, thereby acquiring a total of KRW 4.562,300,000,000,000 for the remainder, etc.
B. On October 31, 2007, the prosecution issued a disposition of non-prosecution on the grounds that it is difficult to recognize the criminal intent of defraudation, and subsequently dismissed the appeal filed by the complainant.
The complainant filed an application for adjudication with the Seoul High Court, but the Seoul High Court on April 4, 2008.