[2] The case holding that the court below erred by failing to exhaust all necessary deliberations or by misapprehending the rules of evidence or by misapprehending the legal principles, in a case where the defendant, by deceiving the victims, received a loan under an agreement to pay interest, but did not pay interest, even though there is no evidence supporting that there was a separate act

[3] In a case where a deceptive act is committed against several victims in the same manner under the single criminal intent, the number of crimes of fraud and the single single crimes can be deemed as a single crime

[4] The case holding that the judgment of the court below which applied the Act on the Aggravated Punishment, etc. of Specific Economic Crimes is erroneous in incomplete deliberation or in the misapprehension of legal principles on the number of crimes, on the ground that each fraud committed by the above victims constitutes a single crime on the sole basis that they are married couple

[2] In a case where the Defendant received a loan under an agreement for interest payment in the course of deceiving the victims to acquire money in the name of investment funds, but did not pay the interest, the case holding that the judgment below which found the Defendant guilty by recognizing the causal relationship between the Defendant’s deception and the occurrence of the above interest, is erroneous in the misapprehension of the rules of evidence or in the misapprehension of the legal principle, even though there is no evidence to conclude that there was a disposal act by the victims, and there was no separate act of disposal as to the interest

[3] In a case where the victim acquired each property by deception against several victims in a crime of fraud, it shall be deemed that the crime is not a single comprehensive crime, even if the crime is identical, but a single crime is established for each victim. However, in a case where there are circumstances where the victims are deemed to have the same legal interests due to the formation of a single company, etc., even if the victims are multiple victims, it may be deemed that the crime of fraud is a single crime.

[4] The case holding that the judgment of the court below which applied the Act on the Aggravated Punishment, etc. of Specific Economic Crimes is erroneous in incomplete deliberation or in the misapprehension of legal principles on the number of crimes, on the ground that each of the fraudulent acts committed by the above victims constitutes a single crime on the sole basis of the fact that the above victims are married.

1. As to the assertion of misapprehension of the legal principles as to permission for changes in indictment

The prosecutor may add, delete, or modify facts charged or applicable provisions of Acts stated in the indictment with the permission of the court within the scope not impairing the identity of the facts charged. The identity of the facts charged is maintained if the social facts, which serve as the basis of the facts charged, are the same in the basic point of view. In determining the identity of these basic facts, the defendant's act and the social factual relations shall be based in mind with the function of the identity of the facts, and normative elements shall also be considered (see Supreme Court en banc Decision 93Do2080, Mar. 22, 1994, etc.).

According to the records, the prosecutor applied for the amendment of the indictment in the court below, which stated in the facts charged in this case as follows: "A prosecutor obtained a total of KRW 2,477,100,000 from the victims as loan money, and acquired it by deceit" shall be deemed as the object of the defendant's series of fraud through investment solicitation, and the facts charged after the amendment shall only be modified to the extent that it is compatible with the facts charged before and after the amendment as a whole with the amendment of the indictment as a whole, since it is not a new correction of the facts charged, but a new correction of the facts charged after the amendment of the indictment as a whole, as it is not a new correction of the facts charged before and after the amendment of the indictment, since it is not a new correction of the facts charged prior to and after the amendment of the indictment as a whole, it shall be deemed that it is compatible with the facts charged prior to and after the amendment of the indictment.

In the same purport, the decision of the court below that permitted amendments to Bill of Indictment is just, and there is no error of law such as misunderstanding of legal principles as to amendments to Bill of Indictment and Permission, and as long as the indictment has been legally changed, whether the facts charged are not specified in the original indictment or not is no problem.

2. As to the remaining frauds of the court below [the list of crimes] Nos. 3, 4, 14, 15, 25, 26, 28, 34, 42, 44, and 46 other than those of frauds

A. As to the criminal intent of defraudation

The criminal intent of defraudation, which is a subjective constituent element of fraud, shall be determined by comprehensively taking into account the objective circumstances such as the defendant's financial history, environment, details of the crime and the process of transaction before and after the crime unless the defendant confessions. Since dolusence is established even through willful negligence. dolusence as a subjective element of the constituent element of the crime refers to the case where the possibility of occurrence of the crime is expressed as uncertain, and it is permissible to do so. In order to have dolus negligence, there is awareness of the possibility of occurrence of the crime, as well as the awareness of the possibility of occurrence of the crime, and further, there is an internal intent to allow the risk of occurrence of the crime. Whether the actor has permitted the possibility of occurrence of the crime is not dependent on the statement of the offender, but on the basis of the specific circumstances such as the form of the act committed outside and the situation of the act, it is necessary to confirm the psychological state from the perspective of the offender (see, e.g., Supreme Court Decision 2007Do871, Jan. 18, 2008).

In light of the above legal principles and records, the court below's finding that there was a criminal intent to acquire the defendant by deceit by taking full account of various circumstances as stated in its holding is acceptable, and there is no violation of law as otherwise alleged, and the ground of appeal is nothing more than an omission of the selection of evidence and the fact-finding which belong to the exclusive authority of the court

B. As to the causal relationship between deception and deception

Even if the criminal has had a third party acquire the property by deception without acquiring the property by himself/herself, if he/she had the third party acquire the property, the crime of fraud can be established.

The court below found the defendant guilty of this part of the facts charged by taking full account of the evidence presented by the court below. The purport of the judgment is that the defendant, by deceiving the victims, ordered the victims to pay the money to Han Bank, etc., which is the creditor of the above company, in connection with the business in which the non-indicted 1 corporation was promoting, and the defendant had the intent to acquire the money by the creditor of the non-indicted 1 corporation.

Although the judgment of the court below on this part is somewhat insufficient, it is justified in the conclusion that fraud is established in relation to this part of the crime, and there is no error in the misapprehension of legal principles as to causation between deception and deception and taking over property in fraud, contrary to what is alleged in the grounds of appeal.

3. As to the fraud in the lower court’s judgment [the list of crimes] Nos. 3, 4, 14, and 15

Fraud is established by deceiving a person, thereby acquiring property or property benefits or having a third party acquire property benefits. In this case, even if the victims have disbursed money, such as acquisition tax and registration tax, to complete the registration of ownership transfer with respect to the ○○ building's whole 3, 4 and some stores of the 2nd floor, which are real estate invested, as recognized by the court below, if this is made to secure their security for investment, it is difficult to say that the defendant has the intention to commit fraud or that the defendant acquired it. The court below should have further deliberated on whether there was a dispositive act by the victims due to deception in this part, and should have determined whether the defendant committed the crime after resolving reasonable doubts.

Nevertheless, the court below found the defendant's deception and the payment of each of the above amounts guilty of this part of the facts charged, which did not exhaust all the necessary deliberations or erroneous facts in violation of the rules of evidence, or erred by misapprehending the legal principles on causation between deception and disposal in fraud, which affected the conclusion of the judgment. The ground of appeal assigning this error is with merit.

4. As to the fraud in the judgment below (the list of crimes) Nos. 25, 26, 28, 34, 42, 44, and 46

Since fraud is established by deceiving another person and omitting his/her dispositive act, causing property and property gains by inducing such dispositive act, the act of dispositive act in this context means property dispositive act, and it requires subjective dispositive act by the defrauded, namely, dispositive intent, and objectively controlled by such intent (see, e.g., Supreme Court Decision 87Do1042, Oct. 26, 1987). However, even according to the facts charged, this part is interest for KRW 40 million paid to the defendant by the victims. Thus, even if the defendant did not make an agreement on interest to the victims during the process of borrowing the above money, it cannot be deemed that fraud is established with regard to the interest portion only, and even if the defendant did not pay it, it is necessary to establish a separate dispositive act with respect to the interest portion by the defendant's deception, and even if there is no data to conclude that there was an dispositive act of the victims with respect to the above interest portion.

Nevertheless, the court below's finding the Defendant guilty of this part of the charges by recognizing the causal relationship between the Defendant's deception and the occurrence of the above interest is not sufficient to conduct a deliberation or erroneous determination of facts in violation of the rules of evidence, or there is an error of law by misapprehending the legal principles on causal relationship between deception and disposal in fraud, which affected the conclusion of the judgment

5. As to the assertion of unreasonable sentencing

The allegation that the lower court’s punishment is heavier than that of ten years cannot be a legitimate ground for appeal in this case where a sentence is imposed.

6. Ex officio determination

In the case of fraud, in a case where a person acquires each property by deception against several victims by each victim, even if the criminal intent is a single and the method of crime is the same, it shall be deemed that the crime is constituted not by a single comprehensive crime but by a victim (see, e.g., Supreme Court Decision 97Do508, Jun. 27, 1997). However, in a case where there are circumstances where the victims are deemed identical legal interests due to the formation of a single business entity, etc., if there are circumstances in which the damage legal interests are identical, even if the victims are multiple victims, it may be deemed a single crime by combining them.

The court below determined that each fraud against the victims, non-indicted 2 and 3 is established. Although the victims are married, each fraud against the victims cannot be deemed a single crime, and as seen earlier, it can be viewed as a single crime by combining fraud against the victims only when there are circumstances where the victims' legal interests are identical. However, even though the criminal facts stated in the court below did not have any specific grounds to regard the victims' legal interests as identical, it is deemed a single crime and applying the Act on the Aggravated Punishment, etc. of Specific Economic Crimes as a single crime. The court below erred in the application of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes by failing to exhaust all deliberation on the number of crimes or by misunderstanding the legal principles, and it is evident that such illegality affected the conclusion of the judgment (see Supreme Court Decision 2003Do6288, Dec. 26, 2003). In particular, since the prosecutor's application of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes may change the judgment of the defendant in the case of the crime of fraud.

7. Conclusion

Therefore, the part of the judgment of the court below which has the reason for appeal should be reversed, and the remaining part of the judgment of the court below should be regarded as a blanket crime or concurrent crime under the former part of Article 37 of the Criminal Act and thus, the defendant is imposed a single punishment. Therefore, the judgment of the court below is reversed in its entirety and the case is remanded to the court below. It

Justices Shin Young-chul (Presiding Justice)