사기
The judgment of the court below is reversed.
Defendant shall be punished by a fine of one million won.
The above fine shall not be paid by the defendant.
1. The summary of the grounds for appeal (misunderstanding of facts) is only based on the demand that C and E receive and deliver the payment of the construction cost to another business entity at the time of the appeal, and it does not constitute a fraud in collusion with C and E, as stated in the facts constituting the crime of the lower judgment.
2. We examine ex officio prior to the judgment on the grounds for ex officio appeal.
On July 7, 2017, the defendant was sentenced to a two-year suspended sentence of imprisonment with prison labor for obscenity, etc. at the Incheon District Court on July 7, 2017 and on April 13, 2018, the fact that the above judgment became final and conclusive can be recognized by records or is significant in this court.
The crime of obscenity, etc., in which the judgment of the court below against the Defendant became final and conclusive, shall be sentenced to punishment for the crime of fraud of this case by taking into account equity with the case where the judgment is concurrently rendered pursuant to Article 39(1) of the Criminal Act, in the relationship of concurrent crimes after Article 37 of the Criminal Act.
In this respect, the judgment of the court below cannot be maintained.
Despite the above reasons for reversal of authority, the defendant's assertion of mistake of facts is still subject to deliberation by the party, and this is examined below.
3. Judgment on the assertion of mistake of facts
A. In light of the following circumstances that can be acknowledged by the evidence duly adopted and investigated by the court below and the court below, the defendant committed the fraud in collusion with C and E as stated in the facts constituting the crime in the judgment below can be sufficiently recognized.
1) On July 8, 2016, G drafted a subcontract agreement with D Co., Ltd. (hereinafter “D”) with a construction cost of KRW 26,800,000.
In this regard, E forged a quotation in the name of G with the construction cost of KRW 41,607,90 in early September 2016.
2) Before receiving the payment of the construction cost at the time, the Defendant promised to pay KRW 10 million, among the construction cost remitted by G, to C and E (hereinafter “C”) to C, and talked with K as a partner.
Therefore, it is true.