특정경제범죄가중처벌등에관한법률위반(사기)
The judgment of the court below is reversed.
A defendant shall be punished by imprisonment for three years.
1. The gist of reasons for appeal (the grounds for appeal submitted by the defendant by his defense counsel after the submission period for the reasons for appeal shall be considered to the extent that it supplements the reasons for appeal);
A. In fact, the Defendant, misunderstanding the legal principles, was issued a promissory note in order to obtain a discount actually, and paid a discount to E Co., Ltd. (hereinafter “E”) or the victim D.
The remaining promissory notes are not paid at a discount on the wind of acquiring promissory notes from a lender of a bill.
Therefore, the defendant did not deceiving the victim and did not have the intention of deception.
B. The benefit acquired by the Defendant in the instant case is limited to KRW 306,552,00 that does not reach the total face value. A judgment of suspension of execution was rendered after the instant crime was committed.
Considering these circumstances, the sentence of the court below (five years of imprisonment) is too unreasonable.
2. Determination on the misapprehension of facts and misapprehension of legal principles
A. It is recognized that, according to the Defendant’s statement as to the promissory note Nos. 1 through 3, 6, 9, and 12, etc. as indicated in the judgment of the court below, the Defendant acquired the promissory note Nos. 1 through 3, 6, 12, etc. as indicated in the attached List of Crimes Nos. 1 to 8, and 146,520 out of the discount amount at the maturity of the Defendant’s request, the said promissory note No. 3 was used by I out of the discount amount of KRW 350,000,000,000 from P bank of the Co., Ltd. with his/her representative under the condition that he/she would pay the said money at maturity to the Defendant, and that at around that time, the Defendant remitted the said discount amount of KRW 145,500,000 to E.
According to the above facts, even if the discounted amount paid to E after obtaining a discount in addition to P's credit is about 30% of the face value of a promissory note, the defendant had the intent to acquire the discounted amount at a discount of 30% per annum without the intention or ability to pay the discounted amount.