A. The defendant of mistake of facts imports shot from China and completed the customs clearance process. The defendant did not deliver shots to the victim due to the conflict between the victim F and the cost-bearing problem, and the first round of shot has the intention or ability to deliver the goods by supplying the goods later, so the court below found the defendant guilty of the facts charged despite the fact that the defendant did not intend to acquire the goods by deceiving the victim, it is erroneous in the misapprehension of facts.

B. The sentence imposed by the lower court (eight months of imprisonment and two years of suspended sentence) is too unreasonable.

2. Determination

A. 1) Determination of the assertion of mistake of facts ought to be made at the time of the establishment of a crime of fraud (see, e.g., Supreme Court Decision 2008Do5618, Sept. 25, 2008). The subjective constituent element of a crime of fraud is to be determined by comprehensively taking account of the objective circumstances, such as the Defendant’s financial power before and after the crime, environment, details of the crime, the process of performing transactions, etc., insofar as the Defendant does not make a confession.

On the other hand, the crime of fraud is established even by the "unclaimed intention".

The subjective element of the constituent elements of crime refers to the case where dolusent intention is expressed as unclear possibility of occurrence of crime and it is acceptable.

In order to have dolusent intent, there is a perception of the possibility of occurrence of crime, and there is a internal intent to allow the risk of crime.

The issue of whether an actor has accepted the possibility of occurrence of a crime is based on the specific circumstances such as the form of an act and the situation of an act that was externally revealed without depending on the statement of the actor. In light of how the general public can evaluate the possibility of occurrence of the crime, it is from the position of the actor.