사기
The judgment of the court below is reversed.
Defendant shall be punished by a fine of KRW 5,000,000.
The above fine shall not be paid by the defendant.
1. Summary of grounds for appeal;
A. In the process of misunderstanding of facts or misunderstanding of legal principles (Defendant) selling F apartment 111 and 802 (hereinafter “instant apartment”) to D, the Defendant did not give proper notice of the amount of the deposit, as stated in the facts charged, and received KRW 23 million in total from D as the contract deposit and intermediate payment. However, since the Defendant did not notify the details of the deposit, the Defendant did not deposit KRW 23 million, there is no causal relationship between the deception and the disposal act.
Nevertheless, the court below found the defendant guilty of fraud in violation of the rules of evidence, or erred by misapprehending the legal principles on causation between deception and the acquisition of property in fraud, which affected the conclusion of the judgment.
B. (1) Defendant: The sentencing of the lower court (a fine of five million won) is too unreasonable.
(2) Prosecutor: The sentencing of the lower court is too unfortunate and unreasonable.
2. Determination
A. Before the judgment on the grounds for appeal ex officio, the prosecutor applied for changes in indictment with the content that the facts charged are changed as stated in the following criminal facts in the trial at the court below, and since this court permitted this, the judgment of the court below was no longer maintained.
However, the defendant's above assertion of misunderstanding of facts is still subject to the judgment of this court, which will be examined below, even if there is such ground for ex officio reversal.
B. Fraud regarding the assertion of mistake is established by deceiving another person to make a mistake by deceiving him/her, and by inducing his/her disposal act to receive property or gain pecuniary benefits. Therefore, there is a causal relationship between deception, mistake, and property disposal act.
(see, e.g., Supreme Court Decision 2000Do1155, Jun. 27, 2000). As to the instant case.