1. Under the current Criminal Procedure Act, an appellate court should take into account the characteristics of the structure of the first instance court when determining the propriety of the first instance court’s judgment, because it has the nature of the so-called ex post facto review, in which the ex post facto core elements are included. Therefore, in a case where the appellate court intends to conduct ex post determination after re-evaluation of the first instance court’s judgment even though there is no new objective reason that may affect the formation of ex post facto examination during the trial process, there is a reasonable circumstance to deem that the first instance court’s determination of evidence was clearly erroneous or that the argument leading to the fact-finding is considerably unreasonable because it is contrary to logical and empirical rules, and without such exceptional circumstance, the appellate court should not reverse without delay the determination of the fact-finding of the first instance court (see Supreme Court Decisions 82Do2829, 82Do612, Apr. 26, 198; 96Do2461, Dec. 6, 196).

2. Of the facts charged in the instant case, the summary of the violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Fraud) against the victim non-indicted 1 is as follows: around August 22, 2012, the Defendant intended to carry out his business by using the ○○○○ building owned by the non-indicted 2 Co., Ltd. (hereinafter “non-indicted 2”) in the victim’s operation and sold the ○○○○ building on the face of its owner on or before December 31, 2012, and sold the 3,101,939,295 won in total, until December 31, 2012, paid the 3,101,939,295 won in total to the non-indicted 3 Co. 4 (hereinafter “non-indicted 3”), 4,000 won in total, and paid 3,486,939,295 won in total to the non-indicted 200 won in the name of the victim 200.

Based on the contents of the share acquisition contract between the defendant and the victim, etc. on August 22, 2012 (hereinafter “instant contract”), the victim’s statement, and the statement in the court of first instance at the court of first instance at the court of first instance at the court of first instance, the first instance found the defendant guilty of disposing of the above building by acquiring non-indicted 2’s shares to the third party without any contact with the victim in advance or ex post facto, while the defendant did not perform his obligation to pay the above agreed money to the victim, and using 2 billion won or more for personal purposes, excluding the principal and interest of the above building as collateral, out of about 4 billion won of the acquired purchase price, at least 4 billion won, excluding the principal and interest of the above building as collateral. ② If the victim is anticipated to pay the agreed money to the defendant, even if the right to dispose of the building was returned, it appears to have been maintained and disposed of as above; ③ whether the above building directly was disposed of to the third party, or whether the defendant had the right to dispose of the building as above building, and it appears to be 200 years.

On the other hand, the court below acknowledged the facts as stated in its holding. The victim believed the success possibility of the business to dispose of the ○○ building rather than the defendant's personal ability or ability to pay off the building and seems to exceed the building. However, even though the defendant did not deceiving the victim with respect to his ability to pay off the building or his own ability, there is considerable room to regard the victim as entering into the contract of this case by assessing the defendant's economic ability and the possibility to dispose of the building, and reliance on the personal-friendly relationship with the defendant's father, and further, the defendant actually promoted the business to dispose of the building by investing the ○○ building in kind in the non-indicted 6 corporation (hereinafter "non-indicted 6 corporation"), and judged that the defendant was merely a waiver of the business due to external and after the external circumstances. In addition, if the defendant collected circumstances such as the relationship between the defendant and the victim recognized by evidence and the specific circumstances and progress of the acceptance of the shares, it cannot be viewed that the defendant misleads the victim about the authenticity of the business or prospects, or that the victim transferred shares due to mistake.

3. As can be seen, we examine whether the lower court’s reversal of the first instance judgment is consistent with the foregoing legal doctrine and logical and empirical rules.

A. Review of the reasoning of the lower judgment and the record reveals the following facts.

1) Around 2011, the victim became aware of the Defendant, who was an son of the right to return investment money, due to the aggravation of the real estate market due to the aggravation of the sale of the ○○○○ building, and the Plaintiff was soliciting the Defendant to make several investments. However, the victim refused to sell the ○○ building owned by Nonindicted Company 2, and the Defendant entered into a contract as follows, in response to the defect that the Defendant would sell the ○○ building in a non-indicted 2’s non-indicted 2’s non-indicted.

2) In other words, on August 22, 2012, the Defendant acquired the entire shares (10,000 shares) of Nonindicted Company 2 in KRW 10 million between the victim and Nonindicted Party 7 and Nonindicted Party 4 who was a shareholder of Nonindicted Company 2. However, until December 31, 2012, the Defendant paid KRW 3,101,939,295 to Nonindicted Company 3, Nonindicted Party 4, and the victim, and paid KRW 385,00,000 in the outstanding amount of the construction works of Nonindicted Company 3, and paid KRW 1,05,00,000 in the name of the Defendant. On July 31, 2012, the Defendant acquired the contract with the lessee, and executed the contract with the lessee to pay KRW 170,000 as at KRW 170,000,000,000 in terms of the contractual obligation to cancel the contract, and even if the Defendant did not exercise its contractual obligation to cancel the contract, the contract’s.

3) As above, regarding the process and motive that the victim transferred the right to dispose of the ○○○○ building by transferring the shares of Nonindicted Company 2 to the Defendant, the victim stated to the effect that the Defendant, who is an son of the native-dong, sold the building in a non-fluorial manner and sold it to the Defendant, and that there was a real estate sales team in the Defendant’s company that operates the Defendant, and that there is the witness Nonindicted 4’s testimony by the first instance court is consistent with this. On the other hand, the Defendant stated from the investigative agency to the lower court, that he was trying to dispose of the ○○○○ building from the time of the conclusion of the instant contract to the lower court, and to acquire the ○○○○○ building by acquiring the ○○○○○ building from the time of the conclusion of the instant contract. However, Nonindicted 8, a witness of the first instance trial, commenced the business of Nonindicted 6 around December 2012, but did not conclude the acquisition process.

4) The Defendant did not dispose of the above building ○○○○○○○○○ (one hundred and twenty-one units, 201, and 202) and did not pay the agreed amount to the victim, etc. by December 31, 2012 as stipulated in the instant contract, and did not perform its payment obligation even until June 30, 2014, which was the extended payment date.

5) Rather, on December 3, 2012, the Defendant provided the said building (excluding subparagraph 202) as collateral to Nonindicted 11, the mortgagee, Seoul Special Metropolitan City, the maximum debt amount, 337,653, and 350 won to Nonindicted 10 million won in borrowing KRW 200 million to Nonindicted 10, May 22, 2013, the Defendant provided the said building (excluding subparagraph 202) as collateral in order to assist in resolving the problem of tax arrears by Nonindicted 11, who carried on his/her business on June 12, 2014. In addition, the Defendant provided the said building as collateral to Nonindicted 11, the mortgagee, the maximum debt amount, the maximum debt amount, 337,653, and 350 won.

6) Of that, the Defendant sold ○○○○ building through planning real estate around October and December 2014 with the victim, etc. on seven occasions. Of the total nine units, the Defendant sold 101-104 units of 101-104 units of 101-103 units of 104 units of 101-103 units of 59 units of 107 units of 107 units of 2,206, 450,00 units of 10 units of 20.2 units of 201 units of 20,000 units of 20,000 units of 10 units of 20,000 units of 10 units of 20,000 units of 10 units of 20,000 units of 3 units of 10,000 units of 20,000 units of 20,000 units of 20,000 won.

7) As above, even if the Defendant sold the ○○ building, the Defendant vindicateed that he was placed on the part of the victim asking for the circumstance that he was placed in the name to raise the price, and did not pay the agreed amount to the victim, etc.

B. As above, the Defendant, under the instant contract, received the right to dispose of the ○○○ building by acquiring the entire shares of Nonindicted Company 2 from the victim, etc., and provided it as a collateral, received a loan, etc., and subsequently sold it to a third party and received the sales price of KRW 4 billion, but did not pay at all the agreed money to the victim, etc. Nevertheless, the lower court determined that it is difficult to recognize that the Defendant had a criminal intent to acquire through deception at the time of the instant contract, or that there was a deception against the victim. In light of the following circumstances known by the factual basis, it is difficult to accept the lower court’s aforementioned determination

1) At the time of the instant contract, the Defendant explained the victim about the method of cashing the ○○○ building by investing in kind to Nonindicted Company 6 at the time of the instant contract. However, even according to the reasoning of the lower judgment, the Defendant’s explanation on the method of cashing the ○○ building by investing in kind to the victim at the time of issuing new shares of Nonindicted Company 6 is not at the time of the conclusion of the instant contract, but at the beginning of 2013. Furthermore, even if such explanation was given, it seems that the progress of Nonindicted Company 6’s acquisition business at the time was difficult to deem that the ○○○○ building was an investment in kind.

In addition, while the Defendant tried to contribute to the investment of ○○ building in kind, the Defendant showed contradictory behavior such as setting up a collateral security on the ○○○ building and receiving a loan, and this is only an obstacle to disposing of ○○ building, and there is no reasonable ground for why it would have done so on the record.

In addition, in order to make an investment in kind in the ○○○ building as alleged by the Defendant, all of the collateral security established as above should be cancelled, and in the ancient world, it should undergo such procedures as realizing the shares of Nonindicted Company 6 acquired in return for an investment in kind. However, there is no circumstance to deem that passing through such a bypassing route would raise the possibility of performing the obligation to pay the agreed amount to the victims, etc., compared to immediately selling and disposing

In light of the above circumstances before and after the conclusion of the instant contract, the Defendant was promoting the acquisition of Nonindicted Company 6 with Nonindicted Company 8, the representative director of Nonindicted Company 15, and had the intent to make a contribution in kind to Nonindicted Company 6, but was refused to make an investment recommendation several times, and it appears that he/she concluded the instant contract by making a false statement that he/she would sell a real estate sales team to the Nonindicted Company 6, while he/she had a real estate sales team, and that he/she would sell the building. In addition, even before the conclusion of the instant contract, the Defendant tried to make a contribution in kind to Nonindicted Company 6 with the acquisition of the instant company before and after the conclusion of the instant contract, and did not have any way to dispose of the building as promised with the victim. Even though the victim was to return the building several times under the circumstances where the said contribution in kind was not made, the Defendant did not take measures such as arbitrarily disposing of the building without any limit, and settled the price of the building after the disposal and payment of the building at all.

In light of such various circumstances as seen earlier, it is reasonable to deem that the Defendant entered into the instant contract with the intent to utilize the said building for his/her own business without the intent or ability to immediately dispose of the said building, in a situation where it was aware that the Defendant may not perform his/her contractual obligation to pay the agreed amount under the instant contract. Moreover, it appears that the first instance court determined that there was a criminal intent to defraud the Defendant, taking into account such various circumstances, and that the argument leading to the determination of evidence and the recognition of criminal intent is in violation of logical and empirical rules.

2) Meanwhile, according to the records, the court below conducted an additional examination of evidence on the part of the planning real estate selling the building ○○○○○ building and the defense counsel of the defendant, which recorded the monetary contents on the selling price of the building ○○○○○○ building (No. 10), and did not conduct a new examination or examination of evidence that could affect the result of the first instance court examination.

Nevertheless, the lower court, based on its reasoning, followed the determination of evidence and fact-finding of the first instance court on the ground that there is insufficient evidence to support the Defendant’s deception of the victim. However, in light of the above facts and the conditions before and after, the victim merely transferred the above building by having the Defendant sell the building in a non-indicted 6’s non-indicted 6’s acquisition business, which the Defendant promoted, and thus, does not exceed the building. Thus, the circumstance that the Defendant’s genuine execution of the business cannot be the main basis for determining the criminal intent of the Defendant’s deception or deception, and the possibility of success does not appear to have reached the level of trust. Moreover, the circumstance of the conclusion of the instant contract that the lower court did not separately pay attention or appraised differently from the first instance court is a major circumstantial element that can be seen as measuring the criminal intent of the defrauded in this case where the Defendant did not make a confession.

Furthermore, although the court below, although the defendant did not deceiving the victim, inferred the factual relations as if he had been erroneous, the court below reached the above judgment on the ground that the defendant's intention at the time of the conclusion of the contract of this case, that is, the defendant's testimony was partially contrary to the victim's testimony without any specific argument as to what the motive or purpose of the contract of this case was to be concluded, not only is it inconsistent with the logical preference, but also the method of determining the intent of deception and fraud in fraud.

3) Ultimately, it is difficult to see that the basis and argument structure of the judgment cited by the court below as the ground of innocence are consistent with logical and empirical rules, and it goes beyond the bounds of discretion to determine the basic principles of the Criminal Procedure Act based on the principle of court-oriented and substantial direct examination. The court below erred by misapprehending the bounds of the principle of free evaluation of evidence and failing to exhaust all necessary deliberations, thereby affecting the conclusion of the judgment. The ground of appeal assigning this error is with merit.

4. The non-guilty part of the judgment below is reversed, and this part of the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices.

Justices Kwon Soon-il (Presiding Justice)