The defendant shall be innocent.

A. On December 28, 199, the Defendant was prosecuted for fraud by Daejeon District Court 9Da4061 on December 28, 199, and the judgment of the court below recognized the charge as guilty and sentenced the Defendant to one year of imprisonment.

B. As to this, the Defendant appealed as Daejeon District Court 200No2137, Daejeon District Court, and the judgment subject to a retrial reversed the judgment of the lower court and recognized the Defendant guilty of the modified facts charged (an attempted fraud from fraud) and sentenced the Defendant to eight months of imprisonment.

C. The Defendant appealed against this and appealed by Supreme Court Decision 2001Do6936, but on February 22, 2002, the judgment subject to a retrial became final and conclusive upon dismissal of the final appeal.

D. After that, on September 20, 2004, the court rendered a decision to commence a new trial on September 20, 2004 on the ground that there was a ground for new trial as stipulated in Article 420 subparag. 2 of the Criminal Procedure Act in the judgment subject to new trial, since the testimony of a witness, a witness who was adopted as evidence of the judgment subject to new trial, was proved to be false

2. Summary of grounds for appeal;

A. Points of mistake of facts

(1) The lower court found the Defendant guilty of the facts charged of the instant fraud (the facts charged prior to the amendment) on the premise that the Defendant, while selling the Defendant’s computer driving school (hereinafter “the instant computer driving school”) to the victim as evidence, on the basis that the Defendant was either paid the amount of KRW 75 million with the amount of the purchase money to the victim, or did not lend money to the victim, on the other hand, due to the victim’s right to receive extension expenses and the amount of money for the students of the private teaching institute.

(2) However, the Defendant: (a) prepared a notarial deed stating that the Defendant would have been aware of the fact that the Defendant would have been using a notarial deed 70,000 won as reflected in the notarial deed prepared with the victim; and (b) prepared a notarial deed 1,200,000 won for extension of the building of the notarial deed; (c) that the Defendant would have been using a notarial deed 100,000 won for premiums for 1,80,000 won for 5,000 won for 70,000 won for notarial deed; and (d) that the Defendant would have been using a notarial deed 1,000 won for a notarial deed that would have been using the notarial deed 5,00,000 won for 1,000 won for 7,000 won for notarial deed; and (d) the Defendant would have received a down payment on the notarial deed 9,000 won for 7,000 won for 1,00 won.

B. The point of unfair sentencing

Even if not, in light of the circumstances of this case, the sentence of the court below is too unreasonable.

3. Ex officio determination

Before the judgment on the grounds for appeal above, as seen earlier, the prosecutor made a change in the name of the crime committed by fraud, applicable provisions, and facts charged. Thus, the judgment of the original court, based on the name of the crime before the amendment of the indictment, applicable provisions, and facts charged, cannot be maintained any more.

However, the grounds for appeal by the defendant who asserts a mistake of facts against the judgment of the court below regarding the facts charged before the change are still subject to the judgment of this court, and the following is to be judged.

4. Judgment on the Defendant’s assertion of mistake of facts

A. Summary of the revised facts charged

On February 10, 197, the Defendant: (a) filed an order to sell the computer private teaching institute of this case with the victim KRW 70,500,000 on the same day; (b) KRW 20,000 on February 24, 200 for intermediate payment; (c) KRW 20,000 on May 30, 199; (d) KRW 30,000 on June 16, 200; and (e) KRW 9,000 on June 16, 200 and KRW 7,000,000,000,000 were collected from the victim to the Plaintiff; (e) KRW 7,000,000,000,000 were collected from the victim; and (e) KRW 97,000,000,000,000 were collected from the victim or agreed to receive separate premium from the victim; and (e) KRW 97,500,00.

B. Judgment of the court below

The court below recognized the crime of abduction as to the facts charged before changing the statements in the victim, OO, each investigation agency of the dedicated unit, and each court of the court below as evidence (referring to the part of the revised facts charged that the defendant acquired pecuniary benefits equivalent to KRW 66,017, 397 from the issuance of an order to seize claims and order in whole).

C. The judgment of this Court

(1) The court below stated that ① among the statements at the court below's court below's ruling of Magsung, the Defendant was aware of the extension of the above school building at around July 1996, the part that the Defendant first known of the extension due to the application for administrative information disclosure by the Jung-gu Office in Daejeon on October 19, 199, and ② the witness who had been subject to review at the court below's ruling of review.

On February 10, 200, the facts were stated in the statement, and around the 16th of the same month, the owner allowed the Defendant, etc. to do so, and the owner of the building, divided the conversation that the owner sent to her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her she

However, inasmuch as the testimony on which the original judgment was based has been proved to be false by a final judgment, the grounds for retrial under Article 420 subparag. 2 of the Criminal Procedure Act is deemed to have existed regardless of whether there was a ground for retrial regardless of whether there was "the fact constituting the crime by other evidence," even though the portion of the false testimony was excluded (see Supreme Court Order 95Mo38, Jan. 16, 1997, etc.). In this case, even if the aforementioned portion of the false testimony was excluded from the above portion of the false testimony, it is examined whether the charges modified by the remaining evidence can be

(2) Judgment of evidence

(A) The premise part of the revised facts charged, namely, the Defendant’s claim of KRW 50 million on the Notarial Deed of this case, which the victim had against the victim, is a claim of KRW 50 million in total, including the remainder of the purchase and sale of the Computer Institutes of this case, and KRW 50 million in total, is not a claim for KRW 50 million in addition to the premium, etc. for the students of the Private Institutes of this case, and thus, it is reasonable to view it as evidence.

1) Facts of recognition

피고인의 이 법정에서의 각 진술 , 당심 제4회 공판조서 중 증인 ☆☆☆★

★★의 각 일부 진술기재 , 피고인에 대한 검찰 피의자신문조서의 각 진술기재 ( 피해자 대질신문부분 포함 ) , ◎◎◎에 대한 경찰 진술조서의 일부 진술기재 , ★★★의 각 진술 서의 각 일부 기재 , 계약서 사본 ( 수사기록 제 11쪽 ) , 인증서 사본 ( 수사기록 제12 ~ 15쪽 ) , 공정증서 사본 ( 수사기록 제16 ~ 21쪽 ) , 각 영수증 사본 ( 수사기록 제22 , 23쪽 ) 의 각 기재 에 의하면 다음 각 사실이 인정된다 .

A) From June 6, 1996, the Defendant has been operating an additional school in relation to the instant computer driving institute and its adjacent thereto.

However, the Defendant, as an additional instructor, employed a computer lecturer due to the lack of well-known knowledge on the computer. On February 10, 1997, the Defendant sought the sale of the instant computer driving school due to difficulties in operating the computer driving school due to the occurrence of unexpected accidents between the computer instructor and the students of the private teaching institute, and concluded a sales contract to transfer the right to lease the facilities and buildings of the instant computer driving school to the victim in total amount to KRW 75 million on the date of the contract, the Defendant would receive the remainder of KRW 5 million until March 10 of the same year, KRW 20,000,000 as of March 10 of the same year, and KRW 50,000 as of May 30 of the same year, plus interest at KRW 30,000 per month after the receipt of the private teaching institute.

B) According to the above sales contract, the Defendant received the victim the down payment of KRW 5 million on the day of the contract, and the intermediate payment of KRW 20 million on February 24, 1997, respectively. Of the remainder, the Defendant drafted a receipt for the remainder of KRW 20 million on May 30 of the same year, and the remainder of KRW 30 million on June 16 of the same year, respectively.

However, on February 23 of the same year, the victim had already taken over the computer driving institute of this case and entered the preparation for the operation of the private teaching institute, such as the expansion of the computer driving institute of this case.

C) On February 20, 1997, the Defendant and the victim drafted a deed on February 20, 1997 as to the instant notarial deed and the contract for sale of private teaching institutes (No. 683, 1997, No. 683, hereinafter referred to as the “certificate of this case”) with the Defendant ordering the victim to transfer the actual operational right of the instant notarial deed and the contract for sale of private teaching institutes.

(c)

On the instant notarial deed, the victim stated on February 20, 1997 that the payment period of KRW 50 million from the Defendant from March 1, 1997 to May 30, 1997, that interest shall be set as one copy of a month and borrowed at KRW 30,000,000,000, excluding KRW 50,000,000,000,000, excluding KRW 200,000,000,000,000 for the instant notarial deed, is related to the transfer of equipment of the instant notarial deed, and therefore, it is stated to the effect that all of the facility expenses, goodwill, etc. other than KRW 50,000,00 is not recognized.

D) Meanwhile, around June 196, the Defendant extended the third floor of the building of the instant Furtering Institute at the time of acquiring the instant computer driving school, and the victim took over the instant computer driving school around February 10, 1997, and then extended the construction work.

E) In addition, an instructor who agreed to operate the computer driving institute of this case with the victim stated that at the time of taking over the computer driving institute of this case from the Defendant, the Plaintiff stated that the student was 100 students in the attendance book at the time of taking over the computer driving institute of this case. In general, it was a practice to recognize the tuition fee of 3-month depending on the number of students enrolled in the school at the time of trading the private teaching institute.

2) In preparing the instant notarial deed and certificate on February 20, 1997, the Defendant first prepared the notarial deed and certificate on February 20, 199, and KRW 50 million on the notarial deed and KRW 18 million on the notarial deed, and the Defendant’s construction cost for the extension of the instant notarial deed and KRW 12 million on June 1996, and KRW 90,000 on the notarial deed and KRW 700,000,000,000,000 lent to the Defendant for the extension of construction cost of the instant notarial deed and KRW 97,000,000 on the notarial deed and KRW 97,00,000,000 on the notarial deed and KRW 97,00,000,000 on the notarial deed and KRW 5,00,000 on the notarial deed and KRW 5,000,00 on the notarial deed.

In order to pay KRW 20,000 to March 10, 1997, the Defendant’s payment of intermediate payment according to the instant notarial deed. It is difficult to understand that the Defendant’s payment of the remainder by adding interest to the Plaintiff from March 1, 1997, prior to the date of the agreement for payment of intermediate payment ( March 1, 1997). ③ On June 16, 197, 197, the victim was issued a receipt from the Defendant while paying the remainder of the instant notarial deed on May 30, 1997, it is difficult to conclude that the Defendant’s purchase and sale of the instant notarial deed was 0,000,000,000,000,000,000,000 won was 0,000,000,000,000 won on the instant notarial deed, and thus, it is difficult to conclude that the Defendant’s payment of the instant notarial deed was 0,000,000,00.

(B) Each statement at the investigative agency and court of the court below, which seems consistent with the changed facts in the instant case, is a statement by the Defendant and the victim, at the time when the Defendant and the victim prepared the instant notarial deed and the certificate, or entered into a sales contract at the said Institute, and the statement in the copy of the instant notarial deed (No. 12-15 pages of the investigation record) is an object to determine the facts charged in the instant case. Thus, the said statement and statement alone are insufficient to acknowledge the changed facts charged.

(C) There is no other evidence to prove otherwise the facts charged in the instant case.

(3) Thus, since the revised facts charged constitute a case where there is no proof of crime, the court below found the defendant guilty of the facts charged in this case and found the defendant guilty of the facts charged in this case, which affected the conclusion of the judgment, and therefore, it is reasonable to discuss the defendant's appeal pointing this out.

5. Conclusion

Therefore, the judgment of the court below shall be reversed by applying Article 364(2) and (6) of the Criminal Procedure Act, and the pleading shall be made and the decision shall be made again as follows.

The summary of the revised facts charged in this case is the same as that of the above No. 4. A, and as seen in the above No. 4. C. (2) above, it constitutes a case where there is no proof of crime, and thus, the defendant is acquitted by applying the latter part of Article 325 of the Criminal Procedure Act.

It is so decided as per Disposition for the above reasons.

Judges Shin Shin Young-young

Judges Choi Sung-sung