[2] Whether an interpreter constitutes a ground for exclusion of an interpreter where the interpreter is a de facto spouse of the victim (negative)

[3] Where an interpreter Gap appeared and stated as a witness on the date of trial of the violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Fraud) against the Defendants, and interpreted Eul's statement as the victim of the above case on the same date, the case holding that the court below erred in finding Eul's witness examination protocol interpreted by Gap as evidence for conviction

[2] Article 17 subparag. 2 of the Criminal Procedure Act provides that "a judge shall be excluded from the performance of his/her duties if he/she is a person who has a relative or relative of a defendant or victim," and the above provision applies mutatis mutandis to an interpreter pursuant to Article 25(1) of the Criminal Procedure Act, but a person in a de facto marital relationship is not a relative under the Civil Act, and thus is not a relative under Article 17 subparag. 2 of the Criminal Procedure Act, so even if an interpreter is a de facto marital spouse, there is no ground for exclusion under Articles 25(1) and 17 subparag. 2 of the Criminal Procedure Act.

[3] In a case where an interpreter Gap appeared and stated as a witness on the first day of the court of first instance for the violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Fraud) against the defendants, and interpreted Eul's statement as the victim of the above case on the same day, the case holding that the court below erred in admitting Eul's witness examination protocol interpreted by Gap as a ground for exclusion cannot be used as evidence of conviction, even though it is not used as evidence of conviction

1. As to the defendants' violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Fraud)

A. According to the reasoning of the lower judgment, the lower court found the Defendants guilty of deceiving Nonindicted 2 from Nonindicted 1 in collusion with Nonindicted 1, and cited the witness Nonindicted 2’s statement in the second trial record of the first instance court on the summary of the evidence.

Article 17 subparagraph 4 of the Criminal Procedure Act provides that a judge shall be excluded from performing his/her duties in case of a case as a witness, appraiser, or victim's representative. Since the above provision is applied mutatis mutandis to an interpreter pursuant to Article 25 (1) of the Criminal Procedure Act, an interpreter shall be excluded from performing his/her duties when he/she

However, according to the records, Nonindicted 3 appeared and stated as a witness on the second trial date of the first instance trial of this case, and it can be known that Nonindicted 2’s statement was interpreted as an interpreter on the same date. Thus, the witness protocol of Nonindicted 2 interpreted by an interpreter who has the ground for exclusion as above cannot be used as evidence of conviction. Nevertheless, the court below erred in finding the above witness protocol as evidence of conviction (on the contrary, Article 17 subparag. 2 of the Criminal Procedure Act provides that the court below is excluded from the execution of duties if the judge was a relative or relative of the defendant or victim, and the above provision applies mutatis mutandis to an interpreter pursuant to Article 25(1) of the Criminal Procedure Act, but the above provision does not apply mutatis mutandis to an interpreter, but it does not constitute a relative under Article 17 subparag. 2 of the Criminal Procedure Act because a person in a de facto marital relationship is not a relative under the Civil Act, even if Nonindicted 3 was a de facto spouse of the victim, there is no ground for exclusion under Articles 25(1) and 17 subparag. 2 of the Criminal Procedure Act).

B. However, examining the evidence adopted by the lower court and the first instance court, other than the aforementioned protocol of examination of witness or the documents evidencing the authenticity of its formation, in light of the records, Defendant 1, in collusion with Nonindicted 1, was authorized to collect and sell waste and scrap metal arising from Korean power and Korean communications, and Nonindicted 5, in the management of Nonindicted 1, as if he had the power to sell it, participated in the act of deceiving Nonindicted 2 of the victim as if he had the power to sell it, and Defendant 2 also participated in the act of deceiving Nonindicted 1 and Defendant 1, who was the vice-chairperson of Nonindicted 5, even though he was aware that he did not have the power to exercise the right to carry out the business of collecting waste and scrap metal, by deceiving Nonindicted 1 and Defendant 1.

Therefore, the court below is just in finding the defendants guilty of deceiving the non-indicted 2 in collusion with the non-indicted 1 and deceiving the non-indicted 2, and the court below's error that the above witness examination protocol cannot be used as evidence for conviction does not affect the conclusion of the judgment. In addition, the court below did not err by misapprehending the rules of evidence or by misapprehending the legal principles on co-principals due to the violation of the rules of evidence or the incomplete hearing.

2. As to Defendant 1’s fabrication of private documents, display of private investigation documents, and fraud against Nonindicted 6 of the victim

The criminal intent of defraudation, which is a subjective constituent element of fraud, shall be determined by taking into account the objective circumstances such as the defendant's financial history, environment, details of the crime, and the process of performing the transaction before and after the crime unless the defendant confessions (see, e.g., Supreme Court Decision 2007Do1214, Feb. 26, 2009).

Examining the judgment of the court below and the evidence adopted by the court below in light of the records and the above legal principles, it is just that the court below found the defendant guilty of each part of the facts charged, and there is no violation of the rules of evidence, incomplete hearing, or misapprehension of the legal principles as to

3. As to the Defendants’ fraud against Nonindicted 7 and 8

Examining the judgment of the court below and the evidence adopted by the court below in light of the records, the court below is just in finding that the defendants did not have the intent or ability to supply or repay the loan money according to the terms and conditions of the contract at the time when they were delivered as security deposit or loan money from the victim non-indicted 7 and 8, and found the defendants guilty of this part of the facts charged, and there is no error in the misapprehension of the rules of evidence, incomplete deliberation, or misapprehension of the legal principles

4. As to Defendant 2’s assertion of unreasonable sentencing

According to Article 383 subparagraph 4 of the Criminal Procedure Act, only in cases where death penalty, life imprisonment, or imprisonment or imprisonment without prison labor for not less than ten years has been imposed, an appeal on the grounds of unfair sentencing is permitted. Thus, in this case where Defendant 2 was sentenced to a minor sentence, the argument that the amount of punishment is unreasonable is not legitimate grounds for appeal

5. Conclusion

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

Justices Lee Hong-hoon (Presiding Justice)