[사기][미간행]
The criteria for judgment on the criminal intent obtained through deception in fraud and the requirements for recognizing dolusible intention;
Articles 13 and 347 of the Criminal Act
Supreme Court Decision 2004Do3515 Decided December 10, 2004 (Gong2005Sang, 155), Supreme Court Decision 2007Do8781 Decided January 18, 2008, Supreme Court Decision 2008Do443 Decided March 27, 2008
Defendant
Defendant
Seoul Southern District Court Decision 2006No1315 Decided January 24, 2007
The appeal is dismissed.
The grounds of appeal are examined.
1. The intent of the crime of defraudation, which is a subjective constituent element of the crime of fraud, shall be determined by taking into account the objective circumstances such as the defendant's financial history, environment, contents of the crime, and the process of performing transactions before and after the crime, unless the defendant is led to confession. The crime of fraud is established even by dolus negligence. The subjective element of the constituent element of the crime refers to the case where dolusence is expressed as unclear possibility of occurrence of the crime and thus it is acceptable. The perception of the possibility of occurrence of the crime in order to have willful negligence occurred, as well as the awareness of the possibility of occurrence of the crime. Furthermore, whether the actor permitted the possibility of occurrence of the crime must not depend on the statement of the offender, but on the basis of specific circumstances such as the form of the act committed outside the crime and the situation of the act, etc., how the general public can evaluate the possibility of occurrence of the crime of the crime from the actor's standpoint (see, e.g., Supreme Court Decision 2007Do871, Jan. 18, 2008).
In light of the above legal principles and records, the court below's finding the defendant guilty of the crime of this case by taking full account of various circumstances as stated in its holding, and there is no violation of law as otherwise alleged, and the ground of appeal is nothing more than an omission of the selection of evidence and fact-finding, which belong to the exclusive authority of the court below, and therefore, it cannot be accepted.
2. In this case where a sentence heavier than ten years of imprisonment is imposed, the argument that the lower court’s sentence is heavier than that of the ten-year imprisonment cannot be a legitimate ground for appeal.
3. Therefore, the appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.
Justices Cha Han-sung (Presiding Justice)