[2] The standard for determining “the intention of committing a crime of misappropriation” which is a subjective element of a crime of fraud

1. As to the grounds of appeal concerning Article 39(1) of the Criminal Act

The term "a crime for which judgment to punish with imprisonment without prison labor or a heavier punishment has become final and the crime committed before such judgment has become final and conclusive" falls under concurrent crimes provided for in the latter part of Article 37 of the Criminal Act. In such cases, where a crime for which judgment has not been rendered among concurrent crimes and a crime for which judgment has not become final and conclusive under Article 39(1) of the Criminal Act are to be adjudicated at the same time, and where a crime for which judgment has not yet become final and conclusive cannot be adjudicated concurrently with a crime for which judgment has already become final and conclusive, a sentence shall be imposed in consideration of equity and the punishment shall not be mitigated or remitted (see, e.g., Supreme Court Decision 2012Do9295, Sept. 27, 2012).

According to the reasoning of the lower judgment, the lower court determined that: (a) on July 15, 2008, the Defendant was sentenced to a suspended sentence of two years and a fine of ten million won on February 26, 2009 (hereinafter “final judgment”); (b) on July 19, 2012, the Defendant was sentenced by the Seoul Northern District Court to a crime of fraud on November 15, 2012 (hereinafter “second final judgment”); and (c) on November 15, 2012, the judgment became final (hereinafter “second final judgment”); and (d) the facts charged around the final judgment were recognized before the date on which the first final judgment became final and conclusive; (c) thus, the crime of the second final judgment cannot be sentenced simultaneously with the crime of the first final judgment after the date on which the first final judgment became final and conclusive; and (d) the lower court reversed the lower judgment that determined that the Defendant was a final and conclusive judgment under Article 31(2) of the Criminal Act and Article 31(1) of the Criminal Act.

In light of the above legal principles, the above judgment of the court below is just, and it did not err by misapprehending the legal principles on Article 39 (1) of the Criminal Act.

2. As to the grounds of appeal regarding fraud among the facts charged in the instant case

A. Summary of this part of the facts charged

The Defendant, as an operator of Nonindicted Co. 1 (hereinafter “Nonindicted Co. 1”) with the construction of ○○○○○○○○ apartment (hereinafter “instant apartment”) and the sales contract for the instant apartment was already delivered to Nonindicted Co. 2 (hereinafter “Nonindicted Co. 1”) on Nov. 28, 2008 in lieu of the payment of construction price to Nonindicted Co. 2, a sub-contractor of the instant apartment, and thus, the Defendant could not offer it as security to the victim, even though it was insufficient construction funds, the Defendant provided the two apartment units sales contract for the instant apartment, including (water omitted) to the victim who was introduced through Nonindicted Co. 4 and transferred the right to sell the mortgaged apartment under the name of Nonindicted Co. 2, 2009, by deceiving the victim on Aug. 4, 2009, and transferred the ownership of the mortgaged apartment under the name of Nonindicted Co. 150 million won to the community credit cooperative account.

B. (1) The intent of the crime of defraudation, which is a subjective constituent element of the crime of fraud, shall be determined by comprehensively taking into account the objective circumstances such as the Defendant’s financial history, environment, content of the crime, process of transaction, relationship with the victim, etc. before and after the crime unless the Defendant is led to confession (see, e.g., Supreme Court Decisions 2004Do74, May 14, 2004; 2006Do8418, Apr. 27, 2007).

(2) According to the reasoning of the lower judgment, the lower court determined that: (a) even if the Defendant offered to Nonindicted 3 the sales contract and “if the construction was not completed, the sales contract should be invalidated”; (b) between Nonindicted 1 and △△△△△△△, a newly constructed subcontractor, decided to deem the “construction work” as the remaining construction work entrusted by △△△△△△△△△△△; and (c) Nonindicted 1 and Nonindicted 1 did not complete the remaining construction work; and (d) concluded a construction contract with the content that there was no additional construction work cost to △△△△△△△△△△△△△△△△△△△△△, Nonindicted 2 received the sales contract to secure the re-supply of the construction cost that it should have received; and (d) it was evident that the Defendant did not accept the above construction contract agreement between Nonindicted 1 and △△△△△△△△△△△△△△△△△△△△△, and that the Defendant did not collect the original sales contract by delivering it to Nonindicted 3, and did not assert the right to the victim’s.

(3) According to the evidence duly admitted by the first instance court and the lower court, the Defendant was faced with a difficult situation at the time of borrowing money from the victim, and ② even though Nonindicted 4, a loan broker, borrowed 200 million won from Nonindicted 4 to the victim’s test, the Defendant did not take measures such as complying with Nonindicted 4 or checking the amount borrowed from the victim’s account even though he only remitted 100 million won to the Defendant’s account. ③ The Defendant did not completely endeavor to preserve security, such as provisional registration or registration of transfer of ownership, even when the ownership was registered in the name of the landowner in the instant apartment, even if the ownership was registered in the name of the landowner, and ④ even the Defendant and the landowner did not prepare a final agreement with the victim on September 23, 2009 on the right of sale of a household unsold in lots, including two households offered to the victim as collateral, and even if the Defendant did not know the fact that the last agreement on the sale contract was made to the victim and the owner’s land, the Defendant did not know that the last agreement was made.

Although it is inappropriate for the court below to determine that the criminal intent of deception is recognized on the ground that it constitutes deception by omission, the judgment of conviction against this part of the charges is justified as a result, and there is no error by exceeding the bounds of the principle of free evaluation of evidence in violation of logical and empirical rules, or by misapprehending the legal principles on the criminal intent of deception by fraud.

3. As to the grounds of appeal on breach of trust among the facts charged in this case

According to the reasoning of the judgment below, the court below held that the crime of breach of trust is established under the Criminal Act on the ground that the crime of breach of trust is established on the ground that: (a) although the defendant, who provided the victim with the right to parcel out as security, has an obligation to perform the procedure of registration of transfer of ownership in accordance with the sale contract No. 301 among the apartment of this case, which was provided as security by the victim with the right to parcel out as security, without taking any measures necessary for the protection of the rights of the victim as to 301 in the course of settlement with the landowner, to allow the landowner to complete the preservation registration as to subparagraph 301 and establish provisional registration on the ground that it brings about the risk that the victim may not claim the right to parcel out ownership transfer registration against the landowner or the right to parcel out the provisional registration, even though the defendant has an obligation to perform the procedure of registration of transfer of ownership in accordance with the sale contract No. 301 among the apartment of this case, which was provided as security by the victim.

Examining the relevant legal principles, the first instance court, and the evidence duly admitted by the lower court, the said determination by the lower court is just and acceptable. In so doing, it did not err by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules, or by failing to exhaust all necessary deliberations, or by misapprehending the legal doctrine

4. Conclusion

Therefore, the appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Poe-young (Presiding Justice)