(b) Fraud;

2.(a) B

Law Firm AT, Attorneys AU (Defendant B)

A. Defendant A

(1) misunderstanding of facts as to deception

Since the loan of this case was made by the defendants to acquire K Co., Ltd. (hereinafter referred to as "K") and offer the defendants' horses as security, not from the victim's belief, but from the fact that the plaintiff was a golf membership (hereinafter referred to as "N") issued by N Co., Ltd. (hereinafter referred to as " golf membership of this case") as security, it cannot be said that there was the defendants' deception in the loan of the money of this case.

(2) Legal principles concerning golf membership

The golf membership of this case was legally and effectively issued by N, and there was sufficient value of security at the time of publication. However, since the value of golf membership was lost or diminished due to the aggravation of N’s financial status, the Defendants cannot be deemed to have taken the money borrowed of this case by deceiving the victim.

(3) Unreasonable sentencing

The punishment sentenced by the court below to Defendant A (two years of imprisonment) is too unreasonable.

B. Defendant B

(1) misunderstanding of facts or misunderstanding of legal principles concerning deception

① Although Defendants used part of the borrowed money in another place and did not use it as K’s acquisition fund, Defendant A and I borrowed money from the victim for the acquisition fund, and thus, Defendant A and I did not make a false statement to the victim during the borrowing process.

② In particular, Defendant B did not have engaged in K acquisition at all, and offered a security to believe that Defendant A and this acquisition is true and that Defendant A and this acquisition is carried out, so there was no contest for deception in relation to Defendant A, I and K acquisition.

③ The victim rejected the Defendant A and I’s request for lending money several times and accepted the defective loan that Defendant B would offer the instant golf membership as security. The victim was not the place of using the borrowed money, but because the sufficient security was the standard for determining the loan of this case, so even if the Defendants were false, the victim was the victim, and thus, there was no causation between the Defendants’ deception and the disposal of the victim’s act.

(2) misunderstanding of facts about golf membership

The instant golf membership security can be deemed to have been agreed upon by the Supreme Court on the following grounds: (a) in the event that the N is a borrower and the obligations are not fully repaid, the said golf membership is deemed to have been paid in kind; and (b) the Supreme Court rendered a final and conclusive judgment recognizing the validity of golf membership issued in the same form as the instant golf membership, and the said golf membership is sufficient security for the instant loans; (c) thus, the Defendants cannot be deemed to have

(3) Unreasonable sentencing

The punishment sentenced by the court below to Defendant B (one year and six months of imprisonment) is too unreasonable.

2. Determination

A. As to the Defendants’ assertion of mistake of facts concerning the Defendants’ deception

For the reasons indicated in its holding, the lower court determined as follows: (a) on the grounds indicated in its reasoning, that the victim lent the instant loan to Defendant A and I for the purpose of securing the above loan obligation; (b) Defendant B provided the instant golf membership as collateral to the victim; and (c) the Defendants enticed the victim as if he used the instant loan as the acquisition fund by borrowing the instant golf membership for the purpose of using it for the expenses for authorization and permission or completion of construction of the instant golf course or for personal purposes; (d) Defendant A had no ability to repay the loan to the victim until December 31, 2010, even if he borrowed money from the victim due to the lack of the acquisition fund and the lack of other financing methods, and thus it was impossible for the Defendants to acquire the instant loan only by acquiring the instant loan, and provide the instant loan money as security; and (e) the Defendants did not use the said loan for acquisition of the said loan amount for several years; and (e) the Defendants conspired with the victim to borrow the said money under the pretext of acquiring the money from the victim.

In light of the following circumstances, which are acknowledged by the court below and the court below's duly adopted and examined evidence, the court below's above determination is just and acceptable. Thus, the defendants' above assertion is without merit.

① The Defendant A and the Plaintiff requested the loan to use the funds raised up to the time for acquiring this K as the acquisition fund by referring to the respective size of the funds raised up to the time, the progress and degree of the inspection procedure, the possibility and timing of exercising the right of management by raising KRW 1 billion, the plan for the payment of the balance of the acquisition price by a dead-end body that has raised 1 billion funds by securing the right of management, the repayment of the borrowed funds by the PP stocks and the promise to provide the loans for 3 to 7 days after securing the right of management, and the promise to provide a temporary security by the N golf membership, etc., and the Plaintiff borrowed KRW 1 billion in consideration of the participation in the future K’s capital increase with the consideration of the above circumstances stated by Defendant A et al., and the receipt of the above security is not a direct reason for the loan of this case.

② Although Defendant A and I, etc. borrowed the amount of money equivalent to KRW 1,00,000,000 from the K’s acquisition fund, they can immediately acquire it and exercise management rights. However, it is clear that the Defendants’ use of KRW 100,000 as the attorney’s fee for criminal case A, KRW 34,00,000 as the Defendant’s DongW’s debt repayment, and KRW 100,000 as the Defendant’s debt repayment, and remitted KRW 50,00,000 to W is for the purpose of raising the acquisition fund.

③ Defendant B consulted with Defendant A to use the loan of this case more than half of the construction cost of K and golf course, and received money from Defendant A to use the entire loan of this case as the acquisition fund by demanding the victim to use the loan of this case as the acquisition fund. Defendant A and I merely provided the security to help Defendant A and I. As such, Defendant B’s act of public offering is recognized. Furthermore, Defendant B and the victim expressed the acquisition procedure of K to the victim, its progress, necessary funds, etc. while Defendant B and the victim requested the loan of this case to take place at the same time, and the victim expressed the acquisition procedure of K, its progress, and the source of the loan. Defendant B agreed to temporarily replace the instant golf membership of this case by the time until the replacement of the P stocks, but offered the promise to replace the instant golf membership of this case as the security one week, thereby supporting Defendant B’s act of offering the loan of this case between Defendant B and the acquisition of the loan of this case.

④ The Defendant’s lending of the instant money was due to the belief of the Defendants, i.e., K’s acquisition of the instant golf membership loan, and the provision of the instant golf membership was limited to temporary collateral for the instant loan. In other words, the victim was finally conducted by offering the instant golf membership as collateral. However, the period until the Defendants acquired K and offered the instant loan as collateral for the instant loan loan due to the circumstances such as the Defendants’ failure to offer the security for the borrowed money. However, it was merely accepted by proposing the provision of golf membership membership as necessary until the time of offering the instant loan by taking over K and offering the instant P stocks as collateral, and it was clearly stated that the Defendants would not lend the instant money if the Defendants told the place of using the borrowed money as true. In light of the consistent and progress of the said statement, the victim’s credibility is apparent.

B. As to the assertion of misconception of facts or misapprehension of legal principles on golf membership

Since a crime of fraud is established by deceiving the other party and thereby acquiring property or pecuniary benefits by deceiving the other party, a crime of fraud is established if the other party was taken place. Since the essence of the crime of fraud lies in acquiring property or pecuniary benefits by deception and thereby infringing on the other party's property, it does not require that the other party actually suffers property loss, and even if the other party was provided with sufficient security regardless of his/her intent of repayment and ability to pay, it does not affect the establishment of the crime of fraud (see, e.g., Supreme Court Decisions 2011Do14247, Jan. 27, 2012; 2010Do12928, Dec. 9, 2010).

As seen earlier, the Defendants enticed the victim as if they were to use the instant loan funds for the purpose of using them for the authorization expenses or completion expenses of the instant golf course or for personal purposes. Defendant A did not have the ability to repay the funds even if they borrowed money from the victim due to the shortage of K’s acquisition funds and other financing methods are not finalized. Although the instant loan funds alone were unable to take over K and offer the instant funds as security, it would not affect the establishment of fraud even if the Defendants were to have provided the said funds under the pretext of the loan funds. Accordingly, the lower court did not have any influence on the conclusion that the Defendants did not know that there was no value of fraud of the instant golf course membership as security for the instant golf course membership as well as on the premise that there was no value of fraud of the instant golf course membership as security for the instant case (i.e., the instant loan funds).

C. As to the Defendants’ assertion of unreasonable sentencing

Defendant A made efforts to recover damage by depositing cash 80 million won and Y issuance shares to the victim; Defendant A was convicted of the crime of embezzlement of KRW 750 million out of the loan amount of this case; Defendant B was convicted of the crime of embezzlement of KRW 750 million; Defendant A had a criminal record in a concurrent relationship between each of the crimes of this case and the latter part of Article 37 of the Criminal Act; and the same should be considered at the same time with the case of judgment and equity.

However, the amount of damage to the crime of this case is not less than one billion won, and the defendant A played a leading role in the crime of this case by introducing the victim as K's transferee and introducing the defendant B as a security for acceptance funds. The victim wants to punish the defendants, and taking into account the degree of participation among the defendants, the amount of the use of the loan of this case, the age of the defendants, family relations, criminal records, criminal records, personality and conduct, environment, motive and circumstance of the crime, method and method of the crime, and all of the sentencing conditions, such as the amount of the loan of this case, the amount of the defendants' participation, the defendants' age, family relation, criminal records, personality and conduct, environment, means and method of the crime, etc.,

3. Conclusion

Therefore, the defendants' appeal is dismissed in accordance with Article 364 (4) of the Criminal Procedure Act because all of the appeals are groundless.

Judges Kim Gung-sung

Judgment of the Supreme Court