사기
The judgment of the court below is reversed.
A defendant shall be punished by imprisonment for six months.
【Judgment on Grounds for Appeal】
1. The summary of the grounds for appeal (in fact-finding and unreasonable sentencing) was transferred KRW 89,192,200 from the victims to the Chinese school under the pretext of studying in China, and actually paid the remaining money excluding KRW 53,539,732 among them to the Chinese school. As such, the amount acquired by deceit due to each of the crimes of this case should be limited to KRW 53,539,732.
In addition, the court below's punishment (six months of imprisonment) against the defendant is too unreasonable.
2. An ex officio determination prosecutor has reached the trial for the first time, and the name of the offense was embezzled as “Embezzlement”; applicable provisions of law are “Article 355(1) of the Criminal Act”; an application for amendment to a bill of indictment was filed with the same content as that stated in the annexed facts charged; and since this court permitted this, the judgment of the court below was no longer maintained.
However, the defendant's assertion of misunderstanding of facts is still subject to the judgment of this court, even if there is such ground for ex officio reversal.
3. In a case of fraud, the content of which is the taking of property in determining the assertion of mistake of facts, if there is a delivery of property due to deception, it constitutes a violation of the victim's property by itself, and thus, the crime of fraud was established.
shall not cause any damage to the entire property of the victim.
Even if the crime of fraud does not affect the establishment of fraud, even if some of the proceeds have been paid, the acquired amount shall not be the difference between the value of the property given by the victim and the value of the property (see, e.g., Supreme Court Decision 95Do203, Mar. 24, 1995). Accordingly, according to such legal principles, even if part of the property acquired by deception is used for the victim, the deception and the acquisition of the pertinent property shall be between the acquisition of the property.