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(영문) 서울고등법원 2012.11.02 2012노1735

특정경제범죄가중처벌등에관한법률위반(사기)등

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The judgment of the court below is reversed.

Defendants shall be punished by imprisonment for not less than two years and six months.

An applicant for compensation shall be dismissed.

Reasons

1. Summary of grounds for appeal;

A. (1) Defendant A and I sent to the victims the phrase of the business that they purchase goods through the J apartment or H apartment as they are, in the process, they did not deceive the victims, and there was no intention to commit fraud.

The defendant did not gain any profit, and only suffered damage by deception between B and I, like the victims.

Dod Defendant B recognizes the facts charged itself.

However, at the request of A, the defendant only introduced AC, etc. to the effect that he can rescue the apartment subject to through sale in the course of physical coloring the apartment at the expense of A, but it is not enough to actually participate in the apartment purchase business.

In light of the fact that the Defendant used the money received from A in accordance with A’s instructions and did not personally receive any money, and that the time when the Victim M was known is around March 19, 2010, the Defendant is merely an aiding and abetting offender rather than an accomplice.

B. The sentencing of the lower court (one year and six months of imprisonment) against the Defendants is too unreasonable.

(E) the above sentence is too unhued and unfair on the contrary.

(Public Prosecutor) 2. Judgment of mistake of facts or misapprehension of legal principles

A. (i) In regard to Defendant A’s assertion, deception as a requirement for fraud refers to all affirmative or passive acts that have to abide by each other in a widely related property transaction, and thus, it is sufficient if it does not necessarily require false indication as to the important part of a juristic act, and it is sufficiently sufficient that it constitutes the basis for judgment for an actor to make a disposition of property which the actor wishes by omitting the other party into mistake, and thus, the other party to the transaction is informed of a certain situation.