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The judgment of the court below is reversed.
In the case of each of the crimes in the 2017 Gohap185, 275, 311, 500 decided by the defendant, two years of imprisonment.
Reasons
1. Summary of grounds for appeal;
A. Defendant 1) In relation to the violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Fraud), the amount of profit under Article 3(1) of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (hereinafter “Special Economic Crimes”) shall be deemed the actual amount of profit. Since the actual amount of profit earned by the Defendant by the crime in this part is less than KRW 50 million, the crime of fraud under the Criminal Act should be recognized as to this part of the crime.
B) Article 2(2) of the Victim AH Co., Ltd. (hereinafter “AH”) of the 2017 Highest 275 case
(2) In relation to the fraudulent part on the charge, the Defendant cannot be deemed to have obtained the above drug by deception since the Defendant processed the entire amount of the drug as stated in this part of the facts charged and deposited in cash the difference between the returned amount and the amount stated in the above facts charged. (2) The Defendant’s imprisonment with prison labor for each of the crimes of this case (one year of imprisonment with prison labor for each of the crimes of this case in 2017Da185, 275, 271, and 500 on the market), which was sentenced by the lower court of unfair sentencing, is too unreasonable.
B. The lower court determined that there is insufficient evidence to acknowledge that the Defendant acquired money by deceiving AD by deceiving AD on or around May 10, 2012 (Article 1-2 of the Criminal Procedure Act) with respect to the part of the facts charged in the case of 2017 Gohap275, the lower court found that there was insufficient evidence to acknowledge that the Defendant acquired money by deceiving AD. However, according to the evidence submitted by the prosecutor, the Defendant can be recognized by deceiving AD through AF, thereby deceiving AF, or by deceiving AF. Since the two are the same factual basis, fraud is established even in any case. Nevertheless, since the lower court acquitted the Defendant of this part of the facts charged, the lower court erred by misapprehending the legal principles, the lower court erred by misapprehending the legal principles.