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The judgment of the court below is reversed.
Defendant
A Imprisonment with prison labor for eight months, and for one year, each of the defendants B.
(b).
Reasons
1. Summary of grounds for appeal;
A. Although the Defendants were unable to complete the construction work after the discontinuance of the construction work under the condition that they received KRW 117,770,000 from the victim I as the name of the subcontract price, there was no intention of deceiving the victims and deceiving the victims of the construction cost.
B. The lower court’s sentence against the Defendants on unreasonable sentencing (one year of imprisonment, two years of suspended sentence, and one year of imprisonment) is too unreasonable.
2. Determination
A. The intent of the crime of defraudation, which is a subjective constituent element of the crime of fraud, is to be determined by comprehensively taking into account the objective circumstances such as the defendant's financial history, environment, contents of the crime, and the process of transaction before and after the crime, unless the defendant is led to confession. The crime of fraud is also established by dolus negligence. The subjective constituent element of the crime element refers to the case where the possibility of occurrence of the crime is expressed as uncertain and it is acceptable, and the possibility of occurrence of the crime is recognized, as well as there is awareness of the possibility of occurrence of the crime in order to have had dolusent intention. Furthermore, whether the actor permitted the possibility of occurrence of the crime should not depend on the statement of the offender, but on the basis of the specific circumstances such as the form of the act committed outside, the situation of the act, etc., the possibility of occurrence of the crime should be confirmed from the perspective of the offender.
(See Supreme Court Decision 2007Do8781 Decided January 18, 2008). According to the evidence duly adopted and examined by the court below, Defendant B operated the said company as the representative director of the G Co., Ltd., and Defendant A was in charge of the business and the conclusion of a contract, and the Defendants were the victims around January 3, 2012.