사기
The part of the judgment of the court of first instance and the judgment of the court of second instance shall be reversed.
A defendant shall be punished by imprisonment for four years.
1. Summary of grounds for appeal;
A. The sentence of imprisonment (four years of imprisonment) imposed by the court of first instance (unfair punishment) is too unreasonable.
B. The judgment of the court below of the second instance (the fact-finding and the unfair sentencing) did not have the intention to acquire the victim H, and the sentence (the imprisonment of eight months) sentenced by the court below is too unreasonable.
2. Determination
(a) In regard to the mistake of facts, deception, which is a requirement for fraud, refers to all affirmative and passive acts that have to abide by each other in property transactional relationships, and that lack the duty of good faith and sincerity.
It is not necessarily required to make false indications on the important parts of the juristic act, but it is sufficient to say that it is the basis of judgment for the actor to perform the act of disposal of property that the other party wishes by omitting the other party's error.
Therefore, in cases where it is recognized that the other party to a transaction would not engage in a transaction if he/she received a notice of certain circumstances, a person who receives property is obligated to notify the other party of such circumstances in advance in accordance with the principle of good faith.
Nevertheless, the failure to notify it constitutes a crime of fraud by deceiving the other party by impliedly disregarding the fact that it would be known.
(see Supreme Court Decision 2017Do20682, Aug. 1, 2018). Comprehensively considering the evidence duly adopted and examined by the lower court, the Defendant concluded that he/she was operating a parts agency to the victim H even if he/she did not operate an I parts agency, and the Defendant was aware that he/she used the money received from the said victim as part agency operating expenses or business funds to repay the principal and interest of the card loan or to pay the existing credit amount, and in light of this, the Defendant may fully recognize the intent of defraudation.
Therefore, the defendant's assertion of mistake is without merit.
(b)No. 1.1 against the defendant on account of the consolidation.