사기
The judgment of the court below is reversed.
A defendant shall be punished by imprisonment for not less than one year and six months.
1. Summary of grounds for appeal by the defendant and his defense counsel
A. In fact, there is no evidence that the Defendant, at the time of receiving money from F, misunderstanding that the amount of tax in arrears was over KRW 1.7 billion, and some of them was subject to a disposition by the prosecution, and there was no intention to obtain money by deception.
Nevertheless, the lower court erred by misapprehending the facts and adversely affecting the conclusion of the judgment by finding the Defendant guilty of the facts charged in this case.
B. The lower court’s sentence that sentenced 1 year and 6 months of unfair imprisonment with prison labor is too unreasonable.
2. Determination
A. We examine ex officio prior to determining the grounds for appeal on the ex officio judgment.
The prosecutor applied for changes in the indictment to "the amount of taxes in arrears was 1.7 billion won and the business was difficult to be conducted after receiving a tax investigation in connection with the tax in arrears," and the court permitted the changes in the object of the trial. Thus, the judgment of the court below cannot be maintained.
However, despite the above reasons for reversal of authority, the defendant and his defense counsel's assertion of mistake is still subject to the judgment of this court.
B. The lower court’s determination as to the assertion of mistake of fact is based on the following circumstances that can be acknowledged by the evidence duly adopted and investigated by the lower court, namely, ① the Defendant would pay interest equivalent to the interest rate of 24% per annum at the time of borrowing KRW 300 million from the victim F from February 20, 2013.
Although the Defendant promised to pay interest only once and did not pay all the remaining principal and interest until now. ② The Defendant was unable to pay the amount of goods worth KRW 100 million supplied by Q on February 2, 2013, and delayed payment of interest on loans from the Korea Credit Guarantee Fund and delayed payment of all kinds of loans, card payments and goods, and around that time, the Defendant’s factory site owned by Q is located.