A. misunderstanding of facts and misunderstanding of legal principles did not intend to recover claims from A, but did not intend to obtain pecuniary benefits by deceiving the victims, and did not cause property damage to the victims due to the Defendant’s act. Nevertheless, the lower court found the Defendant guilty, thereby misunderstanding of facts or misunderstanding of legal principles on fraud.

B. The sentence of an unreasonable sentencing (two months of imprisonment and two years of suspended execution) of the lower court is too heavy.

2. Determination

A. The crime of fraud under Article 347 of the Criminal Act regarding the assertion of mistake of facts and misapprehension of legal principles is established by deceiving a third party to receive property or acquiring pecuniary benefits based on the defective intent resulting therefrom. The essence of the crime of fraud is to acquire property or pecuniary benefits by deception, thereby infringing on the other party’s property. Therefore, it does not require the other party to have actual property damage.

(See Supreme Court Decision 2003Do4914 Decided December 26, 2003, etc.). Meanwhile, if a person who has completed provisional seizure and completed provisional seizure of real estate cancels the provisional seizure, the owner of the real estate without any burden shall obtain the benefit of owning the real estate. Thus, the revocation of provisional seizure also constitutes a property disposal act in fraud, and even if it is found that there was no preserved claim for provisional seizure thereafter, there was no property benefit due to the cancellation of provisional seizure.

(See Supreme Court Decision 2007Do5507 delivered on September 20, 2007, etc.). According to the evidence duly admitted and examined by the court below, the defendant, as stated in the facts constituting the crime of the court below, deceiving the victims who are joint and several sureties, a joint and several sureties, in collusion with A, for the entire repayment of the obligation by A, as stated in the facts constituting the crime of the court below, and thereby inducing the victims to cancel the provisional attachment of the instant real estate owned by A