The nature of fraud in the case of selling so-called brea District Bill

Although current account transaction is established, even if a bill in the name of an insolvent company or an individual, it is obvious that the payment will be refused due to a shortage of funds or a non-transaction, is sold to a person with the knowledge of the fact, a fraud is not established unless there is any evidence as to the fact that the bill was sold in the preliminary stage of fraud that led to the occurrence of fraud, and that the bona fide victims deceiving the victims of the face value of the bill by deception

Articles 351, 347, 25, and 28 of the Criminal Act; Article 3 of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes

Defendant 1 and one other

Defendants

Seoul District Court Decision 88 High Court Decision 364 decided Feb. 1, 198

The judgment of the court below is reversed.

Defendants shall be punished by imprisonment for one year and six months.

One hundred days of detention days prior to the pronouncement of the judgment below shall be included in the above sentence.

The seized No. 2 (No. 1), two promissory notes (No. 2), and one check issuer (No. 3) shall be forfeited from Defendant 1.

The summary of the grounds for appeal by the defendants and their defense counsel is as follows: first, the court below found the defendants guilty even though the defendants did not have committed the same crime as the time of the original trial, which affected the conclusion of the judgment by misunderstanding the facts contrary to the rules of evidence, and second, even if the defendants committed such crime, the amount of each punishment sentenced by the court below is too unreasonable.

As to the assertion of mistake of facts, in full view of the various evidences duly examined and adopted by the court below, the court below found that the defendants conspired to sell the so-called bill with the attached Table 1, such as the so-called breabbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbing the above bill by deceiving the victims in good faith who can be paid at the due date, and obtained the amount equivalent to the face value of the bill. However, according to the evidence in the attached Form 2, the fact that the defendants sold the bill can be acknowledged, but this can not be said to be the commencement of the crime of fraud by the defendants, and there is no evidence to prove that the defendants delivered the bill by deceiving the victims in good faith and acquired it at face value, and therefore, the court below found the defendants guilty. Accordingly, the court below erred by misapprehending the facts contrary to the rules of evidence, or by misapprehending the legal principles on fraud, thereby affecting the conclusion

Accordingly, a party member is reversed the judgment of the court below in accordance with Article 364 (6) of the Criminal Procedure Act, and it is again decided as follows.

Although current account transactions have been opened in Jongno-gu Seoul Metropolitan Government (detailed location omitted), the Defendants sold the bill number of KRW 630,000 or KRW 650,000 per sheet regardless of the face value of the bill, and then sold the bill before sale after adding the proceeds of resale to every time when they go through the descendants of the intermediate seller, and then decided to sell the bill in the name of an insolvent company or individual, which is obvious to be refused due to financial shortage or non-transaction, and to acquire financial profits by selling the bill (tentativeed bill) in the name of the issuer in the name of the non-indicted 10,000 or KRW 650,000,00 per sheet, and then to have the purchaser enter the bill in the name of the issuer in the name of the non-indicted 10,000,000 or KRW 20,000, or KRW 10,000, or KRW 20,000, or KRW 10,000, or KRW 20,000.

The remainder of the facts in the ruling, except habitual, shall not be

1. The defendants' statements in part in the court below's decision, which correspond to the above.

1. Statement suitable to the suspect examination protocol of Defendant 1 prepared by the public prosecutor;

1. Statement on the suspect examination of Defendant 2 prepared by the public prosecutor, which is consistent with this;

1. The statement of Nonindicted 3 in the prosecutor’s preparation of Nonindicted 3 is written in compliance with this.

1. The statement of non-indicted 1’s bill delivery schedule in the Korean National Bank’s pressure/Dong branch, which is compatible with each of the facts.

1. In full view of the existing facts, etc. of seized No. 2 (No. 1), two promissory notes (No. 2), one check issuer (No. 3) and one check issuer (No. 3) and the facts of the judgment that the defendants habitually committed the same kind of crime within the short time, and the facts of the judgment can be recognized in light of the defendants' occupation, living conditions, etc.

Defendants’ act constitutes Articles 351, 347(2), and 30 of the Criminal Act, comprehensively, the Defendants’ act of holding shall be punished by imprisonment within the prescribed term of imprisonment, and the Defendants shall be punished by imprisonment within the prescribed term of one year and six months. According to Article 57 of the Criminal Act, 100 days out of the number of detention days prior to the declaration of the judgment by the court below shall be included in the above sentence; two bills (No. 1), two promissory notes (No. 2), one check issuer (No. 3) shall be included in the number of detention days prior to the declaration of the judgment by the court below; and they shall be confiscated from Defendant 1 pursuant to Article 48(1)3 of the Criminal Act.

Of the facts charged of this case, the Defendants jointly sold 27 copies of the Promissory Notes 27 in the separate form as stated in the first head and distributed them before the date of payment, and by deceiving bona fide victims to refuse to pay them at the date of payment. The Defendants can be acknowledged as having sold each of the bills listed in the separate form as stated in the separate form of the facts charged of this case. According to the above various evidences, the Defendants received 650,000 won, regardless of the face value of the face value to the bearers, etc. in the separate form of fraud. However, with regard to the fact that the Defendants, regardless of the face value of the bill listed in the separate form of fraud, and acquired the face value of the bill by deceiving the victims in good faith, there is no specific evidence as to the deception, as well as there is no evidence to support the fact that the said bill was paid at the date of payment but the non-transaction was refused due to lack of funds, and therefore, there is no evidence to support the crime of this case, and thus, the facts charged in this case are not related to the judgment of innocence.

It is so decided as per Disposition for the above reasons.

Judges Cho Soo-tae (Presiding Judge)