[2] Whether the actual loss of the victim's loss constitutes a constituent element of fraud (negative)

[3] Where the exercise of rights by deception constitutes a crime of fraud

[4] The case holding that a crime of fraud is established against a person holding a cashier's check, in case where a person who took the cashier's check loses it by a false application for a public summons and thereby is sentenced to the nullification judgment

[2] A crime of fraud is established by deceiving another person to receive property or to acquire pecuniary benefits from the defective intent resulting from deception, and the essence of a crime of fraud is to acquire property or pecuniary benefits from deception, thereby infringing on the other party's property. Therefore, it does not require that the other party actually suffers pecuniary loss.

[3] In the case of the exercise of rights by means of deception, if the act belonging to the exercise of rights and the act of deception belonging to the said means are comprehensively observed, and such deception cannot be acceptable as a means of exercise by social norms, the act of exercise of rights constitutes fraud.

[4] The case holding that a crime of fraud is established against a person holding a cashier's check, in case where a person who took the cashier's check loses it by a false application for a public summons and thereby is sentenced to the nullification judgment

A. First of all, as to whether the Defendant acquired property benefits upon receiving a judgment of nullification on the instant check, the Defendant submitted the judgment of nullification on August 16, 2001, and recognized that the Defendant received eight million won (8 million won) at the face value of the instant check from the monthly-dong branch of the Gwangju Bank to deposit account with the beneficiary deposit passbook, and acquired financial benefits equivalent to that amount.

B. Next, as to whether the victim suffered property loss, even if the victim took over the check of this case from the defendant, the defendant did not cancel his/her expression of intent against the victim to issue the check of this case, and the victim was able to exercise his/her right to the check of this case. However, as a passive effect of the judgment of nullification, the check held as a passive effect of the judgment becomes null and void, and thus, the victim was unable to exercise his/her right to claim reimbursement of benefit under the premise that the check is the lawful holder of the check, and the victim suffered loss that the victim

2. A. On the other hand, if the defendant applied for a public summons on the cashier's check and confirmed a judgment of nullification was rendered, the defendant acquired the status that he can exercise his right on the check without holding the check against Gwangju Bank, the debtor on the check. Thus, it would be sufficient to deem that he has acquired the property interest on the check. This is merely because the judgment of nullification is limited to recognizing the applicant's formal qualification to exercise the right on the check, and it is not confirmed as the actual right holder.

Therefore, regardless of whether the defendant submitted a judgment of nullification on August 16, 2001 and received KRW 8 million, the face value of the check of this case from the monthly branch of the Gwangju Bank by means of a mutually advantageous deposit passbook after the judgment of nullification became final and conclusive, the defendant shall be deemed to have acquired property profits when the judgment of nullification becomes final and conclusive.

B. A crime of fraud is established by deceiving another person to receive property or to acquire pecuniary benefits from a defective intent resulting from deception, and the essence of fraud is to acquire property or pecuniary benefits from deception, thereby infringing on the other party's property, so it does not require that the other party may actually incur any property loss (see Supreme Court Decision 98Do2526, Nov. 10, 1998, etc.). In addition, in the case of the exercise of rights by deception, if the act belonging to the exercise of rights and the deception belonging to such means are comprehensively observed to the extent that such deception cannot be acceptable as a means of exercise of rights under social norms, the act of exercising rights constitutes a crime of fraud (see, e.g., Supreme Court Decision 2002Do6410, Jun. 13, 2003).

However, the defendant has the right to claim the return of the check after cancelling the expression of intent on the agreement which caused the issuance of the check to the victim, and in this case the debtor on the check, i.e., Gwangju Bank, the drawer, may set up against the victim the so-called "non-rights defense," but the records alone cannot be readily concluded that the expression of intent on the agreement which caused the issuance of the check was lawfully cancelled until the judgment of nullification is rendered. In addition, the victim, the holder of the check, is entitled to exercise his right on the check regardless of the defects or defects in the underlying relationship (However, if the debtor on the check lost his/her personal defense due to defects in the underlying relationship). If the defendant was illegally declared a judgment of nullification and invalidated the check (securities), then it shall be deemed that he/she infringed the victim's right on the check, regardless of whether the actual or economic damage was inflicted on the victim.

C. Although the reasoning of the judgment below is different, the conclusion that found the Defendant guilty of the facts charged in the instant case is just and acceptable, and there is no error of law by misunderstanding facts or misunderstanding legal principles.

3. Therefore, the appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Yoon Jae-chul (Presiding Justice)