A. Fact-misunderstanding and legal principles, the defendant and the victim agreed to purchase the right of lease of public rental apartment with the funds of the victim, resell them after the defendant managed them, and divide the profits therefrom into half. Accordingly, the victim paid 608 million won to the defendant for the purchase cost of the right of lease of public rental apartment. Since the profits from the resale of public rental apartment constitute illegal causes, the victim cannot claim the return thereof to the defendant. Thus, the amount of damage caused by the crime of this case shall be limited to 608 million won actually paid by the victim.

B. The punishment sentenced by the lower court (eight months of imprisonment) is too unreasonable.

2. Determination

A. As to the assertion of misunderstanding of facts and legal principles, the essence of fraud is to acquire property or proprietary benefits by deception and thereby infringe on the other party's property, so it does not require that the other party actually suffers property damage (see Supreme Court Decision 2003Do4914, Dec. 26, 2003, etc.). The criminal facts in the judgment below do not require that the defendant acquired money from the damaged party, but acquired pecuniary benefits equivalent to the value at the time of the above lease right by obtaining the right to dispose of the right to lease of public rental apartment purchased with the victim's funds. Thus, the criminal facts in the judgment below do not require that the gains acquired by the defendant from the damaged party should be limited to the amount of money received by the injured party or the actual

In addition, even if the beneficiary cannot exercise the right to claim the return of the beneficiary because the benefit constitutes an illegal cause under Article 746 of the Civil Code, if the beneficiary through deception provided the beneficiary with the property equivalent to the illegal cause of fraud (Supreme Court Decision 95Do707 delivered on September 15, 1995).