사기등
The part of the judgment of the court below regarding the crime of fraud against victim C shall be reversed.
Defendant shall be sentenced to six months of imprisonment.
1. Of the facts charged in the instant case, the lower court determined not guilty of fraud and occupational embezzlement against victims C and guilty of the remainder of the facts charged. However, inasmuch as the Defendant and the Prosecutor filed an appeal as to the part of the lower judgment’s acquittal, and the conviction was separated and confirmed by the remainder of the appeal period (see Supreme Court Decision 2010Do10985, Nov. 25, 2010), the lower court’s judgment should be tried only on the part of the acquittal of the lower judgment.
2. Summary of reasons for appeal;
A. In light of the process of construction related to the fraud against the victim C, the court below acquitted the defendant of this part of the facts charged, although the defendant had no intention or ability to continue the loan construction at the time when the defendant received 50 million won investment money from the victim C, and could sufficiently recognize the criminal intent by deceit. The court below erred by misapprehending the facts or by misapprehending the legal principles, which affected the conclusion of the judgment.
B. As to the occupational embezzlement, the Defendant received money from the victims as investment funds in connection with the investment fund in a cover sheet business, and agreed to distribute certain profits, and there is no express agreement between the Defendant and the victims that they will only make investments and not participate in the process of management or business, etc. In light of the fact that the nature of the investment contract between the Defendant and the victims cannot be deemed as an anonymous association agreement similar to that of an anonymous association, and thus, the lower court acquitted the Defendant of this part of the facts charged. The lower court erred by misapprehending the facts or by misapprehending the legal doctrine, thereby adversely affecting the conclusion of the judgment.
3. Determination
A. The lower court’s judgment on the fraud against the victim C is legitimate.