A defendant shall be punished by imprisonment for a term of one year and two months.

Of the facts charged of this case, the judgment of the court below.

A. The lower court erred by misapprehending the legal doctrine as to the precedent of relatives, even though the Defendant’s act of defraudation against the victim B constitutes a case where punishment cannot be imposed upon being exempted.

B. The sentence sentenced by the lower court to the Defendant (one year and four months of imprisonment) is too unreasonable.

2. Judgment on the misapprehension of legal principles

A. The status quo to which the foregoing precedent is applicable to relatives of the relevant legal doctrine is sufficient if it exists at the time of the criminal act, and Article 328(1) applicable mutatis mutandis under Article 354 of the Criminal Act is exempt from punishment for the crime under Article 323 between a lineal blood relative, spouse, relative living together, family member living together, or his/her spouse.

“A person who is stipulated in the judgment below.” The “spouse’s spouse does not mean only the spouse of a lineal blood relative, a lineal relative living together, and a spouse of both family members (see Supreme Court Decision 2011Do1765, May 13, 201). (b) In light of the relevant legal principles as seen earlier, in the case of fraud against the victim B (see Supreme Court Decision 201Do1765, May 13, 201), according to the marriage relation certificate and the statement of the transcript submitted by the counsel of the defendant at the trial court, the defendant was married with the victim B on September 24, 1996, but it was recognized that the agreement was divorced on December 1, 2020, and thus, the defendant committed fraud against the victim B from 2013 to 2017 during the above marriage (the defendant is exempt from the punishment of the victim’s lineal blood relative at the time of exemption from the punishment of this case).

Nevertheless, the judgment of the court below which sentenced punishment including the exemption from punishment of this case is erroneous in the misunderstanding of legal principles as to relatives' precedent, which affected the conclusion of the judgment.

3. If so, the defendant's argument of misunderstanding the legal principles is with merit, and the sentence of this case is with merit.