A. In the event that the Defendant entered into a business takeover contract with the victim as to D (hereinafter “D”) as stated in the facts charged of this case, the Defendant’s obligation not notified to the victim is limited to part of the Defendant’s obligation to Korea Packaging Construction Co., Ltd., and the amount of the obligation not notified is less than the amount indicated in the facts charged of this case as KRW 171,258,215, and even if the amount of the obligation actually received is less than the amount indicated in the facts charged of this case, the lower court convicted the Defendant of the facts charged of this case by misunderstanding the facts and adversely affecting the conclusion of the judgment.

B. The sentence imposed by the court below on the defendant (one year and six months of imprisonment) is too unreasonable.

2. Determination

A. We examine the argument of mistake of facts. The deception as a requirement for fraud refers to all affirmative or passive acts that have to be widely observed in the transactional relationship with each other, and it does not necessarily require to be related to the important part of a juristic act. It is sufficient if it is based on the facts of the judgment in order to allow the other party to perform the act of disposal of the property that the actor wishes by omitting the other party in mistake. Whether the act constitutes deception that causes a mistake of another person should be determined generally and objectively by taking into account the specific circumstances at the time of the act such as the transaction, the other party's knowledge, experience, and occupation.

(see, e.g., Supreme Court Decision 2009Do7459, Oct. 15, 2009). In addition, deception by passive act refers to a person subject to legal duty of disclosure, who knows that the other party was involved in a certain fact, does not notify the other party of such fact. In addition, if the other party knew of such fact in light of the empirical rule of general transactions, the pertinent legal act is not performed.