사기
The judgment of the court below is reversed.
Defendant shall be punished by a fine of KRW 2,000,000.
The above fine shall not be paid by the defendant.
1. The summary of the grounds for appeal by the Defendant is as follows: ① Even though the Defendant did not have any intent to obtain money from the victim company, the lower court found the Defendant guilty of the facts charged in this case by misunderstanding the facts, and ② not so.
However, the sentence of the court below that sentenced a fine of KRW 3,00,000 to the defendant is too unreasonable.
2. Determination
A. First of all, we examine the misunderstanding of facts, but the criminal intent of defraudation, which is a subjective constituent element of fraud, is not a conclusive intention, but a willful negligence is sufficient.
In light of the evidence duly adopted and examined by the court below (However, the part on D's statement among witness I and K's respective legal statements of the court below is inadmissible as evidence, and it is not admissible as evidence), it is recognized that the defendant suggested investment of KRW 1 billion in the victim company E from the company E to the investment of KRW 5 billion in the loan of KRW 1 billion in the site of the business site from the company E to the investment of KRW 5 billion, and that the above proposal was rejected immediately since the above change in the business structure of the victim company. Although the above situation was very vague from the beginning, although the defendant's intent to attract investment of KRW 1 billion was very vague, it is reasonable to view that the defendant acquired money from the victim company as activity expenses, etc., in view of the fact that it cannot be said that the defendant was successful in attracting investment from E.
B. Meanwhile, in full view of the following circumstances, the sentence of the lower court is too excessive, taking into account the following circumstances: (a) the offender’s awareness of the sentencing is dolusent rather than the final and conclusive one as seen earlier; (b) the victim company is seeking the Defendant’s wife while withdrawing the complaint; and (c) the Defendant’s age and character and behavior are attached to the sentencing.