특정경제범죄가중처벌등에관한법률위반(사기)등
The judgment of the court below is reversed.
A defendant shall be punished by imprisonment for not less than two years and six months.
The request of the applicant for compensation shall be dismissed.
1. Summary of grounds for appeal;
A. Part of the defendant's case (1) misunderstanding of facts (A) The defendant did not have any intention to acquire by deceit the investment of this case.
(B) In the list of crimes attached to the lower court, the actual amount of damage, excluding the amount calculated in duplicate with the amount invested by the victims, which has already been received as principal and allowances, shall be stated in the list of the current status attached to the reference materials submitted on November 24, 2014 by the defense counsel, as the amount of damage amount in the list of crimes attached to the lower court, is KRW 759,489,500.
The victim's "victim" in the above list of crimes is 73 victims if the victim excludes both the investors who have received all principal and the profits and the relatives of the defendant.
(C) According to the [Attachment 3] of the lower judgment, although the amount of damage of the victim G is indicated as KRW 950,400,000, the accurate amount of damage is KRW 424,400,000.
(2) The lower court’s sentencing (two years and six months of imprisonment) is too unreasonable.
B. The lower court in the part of the compensation order case: (a) ordered the Defendant F to pay KRW 41,649,00 to the applicant for compensation, and KRW 23,261,00 to G to the applicant for compensation; (b) however, F to receive KRW 19,025,00 for the applicant for compensation, and KRW 16,465,00 for G, in addition, as net income and allowances, each of the above amounts should be deducted from the amount of compensation order.
2. Determination on the part of the defendant's case
A. (1) With respect to the assertion that there was no intention to commit the crime of defraudation of facts, the criminal intent of defraudation, which is a subjective constituent element of the crime, shall be determined by taking into account the objective circumstances such as the financial history, environment, details of the crime, process of transaction, etc. of the defendant before and after the crime, unless the defendant is led to his confession, and the crime of fraud is also established by willful negligence. Therefore, the willful negligence as a subjective element of the constituent element of the crime, is permissible by expressing that the possibility of the crime is uncertain.