The summary of the facts charged in this case is that the Defendant, who entered into an insurance contract with the victim non-indicted 1 corporation, was working as an insurance counselor for the ○ Home shopping agency, and sold the victim's insurance products. Despite the knowledge that the policyholders listed in the attached list of crimes in the judgment of the first instance were not able to actually subscribe to insurance and not maintained the insurance contract once after the payment of insurance premiums. However, the Defendant, by making Nonindicted 2 enter into the health insurance contract of △△△△△△△△△△△△△ △△ △ △ △ △ △ 100 won of monthly paid-in premiums by telephone, thereby deceiving the victim and then deceiving the victim by the same method, including by receiving 36,875 won as commission for the conclusion of the insurance contract, and by receiving 32,963,902 won from the victim.

In full view of the evidence duly adopted and examined at the first instance court, the victim concluded a contract with a damage insurance agency with the content that ○ Home shopping store requires the victim to solicit insurance by telephone conversations and pay a certain amount of fees to the victim. On July 1, 2011, the defendant entered into a contract with ○ Home shopping store to invite insurance and receive fees from the victim, and the defendant did not enter into an insurance contract with the victim as a counselor of the insurance agency until December 30, 201 without any intention to enter into an insurance contract, and it is difficult to consider that the victim did not have any duty to inform the victim of the insurance premium and to enter into an insurance contract with the victim on one occasion on behalf of the participants in the attached list of crimes without any intention to enter into an insurance contract. Since it is difficult for the victim to enter into an insurance contract with the victim on behalf of the victim on behalf of the victim, the court below acknowledged that the victim did not have any duty to enter into an insurance contract with the victim on behalf of the victim on behalf of the victim on the insurance policy.

However, the above determination by the court below is difficult to accept for the following reasons.

The deception as a requirement for fraud refers to all affirmative and passive acts that have to observe each other in a widely related property transaction, and therefore, it is sufficient to say that the deception does not necessarily require false indication as to the important part of a juristic act, and that it is the basis for judgment in order to have an offender take a disposition of property which he wishes to take by mistake. Thus, in a case where it is recognized that the other party to a transaction would not take a certain transaction if he would have been notified of a certain situation, a person who receives property has a duty to notify the other party of such situation in advance. Nevertheless, failure to notify the other party of such situation is deceiving, and thus, it constitutes fraud (see Supreme Court Decision 2003Do7828, Apr. 9, 2004).

In full view of the facts acknowledged by the court below, it appears that the victim would not pay the fees for entering into the insurance contract if the insured knew that the insured would not actually pay the insurance premium and would not maintain the insurance contract after settling the first insurance premium. The defendant would be obliged to notify the victim of the circumstances that the defendant would receive the insurance application through ○ Home shopping in accordance with the principle of trust and good faith, because the insured would not actually pay the insurance premium to the victim, and the defendant would not pay the fees for entering into the insurance contract after settling the insurance premium. The defendant would not be obliged to inform the victim of the circumstances that he would receive the insurance application by allowing the victim to enter into the insurance contract with the victim without the intention to establish the insurance contract in advance. Nevertheless, it is difficult to view that the contract between the defendant and the victim did not directly establish a contract between the victim and the victim, and thus, the defendant would not know that the defendant would not have been aware of the fees for entering into the insurance contract through ○○ Home shopping, etc., or that the defendant would have received the insurance contract through the duty of disclosure.

Nevertheless, the court below acquitted the defendant on the grounds as stated in its holding. The court below erred by misapprehending the legal principles on deception by omission in fraud, which affected the conclusion of the judgment. The ground of appeal assigning this error is with merit.

Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Poe-dae (Presiding Justice)