(1) The summary of the charge of fraud against the Defendant is as follows.

Despite the fact that at the end of December 190, the Defendant was unable to be supplied with the steel store operated by himself as a partner with more than KRW 25,486,00,00,000, the debt in arrears to the Pyeongtaek-si industry, which is the business partner. However, upon the Defendant’s request that the Defendant provided the instant land as security from the victim’s quota, which is owned by Non-Indicted 40,000, and received the victim’s certificate of personal seal impression and seal impression, the Defendant’s debt to the above non-party company should not exceed KRW 2,00,00,000, and if it provided the instant land as security to the company, it could be selected within one month by deceiving the creditor, the debtor, and the maximum debt amount as KRW 44,00,00,00, and caused the Defendant to enter into a mortgage agreement with the non-party company, the debtor, and the maximum debt amount to the mortgage amount to secure property profits.

(2) As to the above facts charged, the court below affirmed the first instance judgment that acquitted the Defendant of the above facts charged on the ground that there is no room to establish fraud, since it is difficult to view that the above clinical disease, the defrauded, had any authority or status to dispose of the land of this case or to establish a collateral for the purpose of gardening, even if he/she had completed the registration of establishment of a collateral for the land of this case with respect to the non-party company on the ground of the Defendant’s deception, it does not constitute fraud as to the fixed number of persons who are victims, even if he/she had done the registration of establishment of a collateral for the land of this case by the non-party company, and it is difficult to

(3) For the establishment of fraud, it is necessary for the defrauded to gain pecuniary advantage by inducing the defrauded to perform a certain act of disposal in the event of an error, and in the event that the defrauded and the victim of property are not the same person, the defrauded has the competence or position to dispose of his/her property on behalf of the victim (see, e.g., Supreme Court Decision 90Do2180, Jan. 11, 1991; Supreme Court Decision 89Do346, Jul. 11, 1989). Here, the competence or position to dispose of property on behalf of the victim does not necessarily coincide with the scope of delegation under private law or power of attorney, and in case where documents, etc. that can dispose of property are issued by the victim’s intent, even if the dispositive act by the defrauded is contrary to the true intent of the victim, it shall be deemed that the above competence or position has no influence on the establishment of fraud.

Even according to the reasoning of the judgment of the court below, in order to sell the instant land and use it for the business funds of his/her father Hongok and Kim Tae-tae, the victim had affixed his/her seal impression in order to sell the instant land, and they did not reject the fact that they again entrusted the sale to the non-indicted 1 and delivered the said seal impression to the non-indicted 1, and according to the records, the above arbitra use of the victim's seal impression affixed by the above arbitr, which is the defrauded, was prepared for the establishment of the instant mortgage by using the victim's seal impression affixed by the above arbitr, and even though the victim delegated only the right to sell the instant land to the above arbitr, the purpose of the delegation was deteriorated between the parties concerned, such as Dongin, and thus, it is not concluded that the above arbitr, who is the defrauded, did not have the power to dispose of the instant land

In the establishment of fraud, the court below erred by misapprehending the legal principles on the competence and position of the defrauded who is required in the case where the defrauded is different from the victim, and without examining whether the defrauded was in a position to establish a right to collateral security in this case by further examining the circumstances surrounding the establishment of the right to collateral security in this case, and without examining whether the defrauded was in a position to establish a right to collateral security, and thereby, affected the conclusion of the judgment. Therefore, there is a reason to point this out.

(4) Therefore, the part of the judgment of the court below regarding fraud is reversed, and this part of the case is remanded to the Jeonju District Court Panel Division. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Don-hee (Presiding Justice)