The nature of fraudulent means and larceny

Taking the books borrowed from the library by filing an application for reading books out of the library constitutes larceny, not fraud.

Articles 329 and 347 of the Criminal Act

Defendant

Defendant

Yeongdeungpopo Court of Seoul District Court (77 High Court Decision 151)

The judgment of the court below is reversed.

As to the crimes of paragraphs (1) through (4) of the holding, the defendant shall be punished by imprisonment with prison labor for not less than 8 months and by imprisonment for not less than 6 months.

The number of detention days prior to the pronouncement of the judgment of the court below shall be 60 days imprisonment with prison labor, and 45 days imprisonment with prison labor, respectively.

One copy of the resident registration certificate seized (No. 1) shall be returned to the victim non-indicted 1.

On the other hand, we first examine the defendant's argument of unfair sentencing.

Around 19:00 on April 8, 197, the summary of the indictment of this case (3) fraud is that the defendant entered the National Library located in Jung-gu Seoul, Jung-gu, Seoul, and applied for reading books under the intention to obtain access from 1-177 National Library and take over the old books, the defendant obtained the previous resident registration certificate of Non-Indicted 1, and replaced it with the defendant's photograph, made the name of the applicant for perusal using the possession as a photograph, and presented the above altered resident registration certificate to Non-Indicted 1, who is the same person as Non-Indicted 1, and was able to receive a refund of the loan book on the same day by presenting the above altered resident registration certificate. Accordingly, the court below recognized the above facts by all evidence as stated in the judgment below, and recorded it as a crime of fraud, which is a crime of prosecution.

However, even if the victim of this case is the same as the above recognition, it is difficult to see that it was possible for the defendant to take measures other than perusal by acquiring it at the same time, and the above loan is within the extent that the control of the victim's recovery can not be justified. However, the court below erred by misunderstanding the legal principles that the court below asked the so-called of the defendant in fraud (the defendant's use of deceptive means is merely a means to take property and takes property from the victim's defective intention and takes it out to the outside of the library against the victim's will to take it out to the extent that it was transferred within the control scope of the defendant's possession. Accordingly, the judgment of the court below cannot be reversed because it did not affect the judgment.

Therefore, the judgment of the court below is reversed in accordance with Article 364 (6) of the Criminal Procedure Act, and the member is again decided.

The gist of the evidence and the facts charged by the defendant admitted as a party member are as shown in the corresponding column of the judgment of the court below except for the modification of the facts set forth in paragraph (3) of the court below according to the amendment of the indictment (the addition of the facts charged in the preliminary charge) at the trial of the public prosecutor, and therefore, all of them are cited in accordance with Article 369 of the Criminal Procedure Act (the facts charged in the principal charge does not constitute a crime of fraud). However, as seen above, insofar as the facts charged in the principal charge do not constitute a crime of fraud, which are the ancillary facts charged, the court does not separately express that

The Defendant, at around 19:00 on April 8, 197, entered the National Library located in Seoul, Jung-gu, Seoul, 177, and applied for the perusal of books, the Defendant: (a) recorded four books, such as a new economics and source theory, in the book column of the book reading sheet, and (b) presented to Nonindicted 2, who was an employee of the said library after the theft and alteration, along with the resident registration certificate of Nonindicted 1, who was held after the alteration, and (c) exercised the said library’s right to temporarily loan title at KRW 12,00,00, at that time after the said four books were delivered to the said employee, and deemed it out of the said library; and (d) thus, it was stolen.

As seen in light of the law, the points of larceny (1), (3) through (5) of the judgment of the defendant shall be as follows: Article 329 of the Criminal Act; Article 225 of the judgment (2) provides that the alteration of the official document shall be made; Articles 229 and 225 of the judgment (3) provide that the defendant shall be sentenced to imprisonment for each prescribed term of imprisonment for larceny; Articles 229 and 225 of the judgment; Articles 37 (1) through (4) of the judgment of the first head of the judgment shall be selected for a prescribed term of imprisonment for each crime; Article 37 (1) through (4) of the Criminal Procedure Act provides that the defendant shall be sentenced to imprisonment for each crime under Article 37 (1) of the judgment of the court below; Article 39 (1) (1) through (4) of the same Act provides that the defendant shall be sentenced to imprisonment for a limited term of imprisonment for each crime under Article 37 (1) of the same Act; Articles 38 (1) 2 and 50 of the same Act provides that the victim shall be sentenced to imprisonment for each crime.

It is so decided as per Disposition.

Judges Park Jong-dong (Presiding Judge)