[1] Whether a crime of fraud is established even in cases where there is a negligence on the part of the defrauded among the causes of mistake and omission (affirmative), and the standard for determining “the criminal intent of misappropriation” which is a subjective element of fraud

[2] The case holding that in a case where a credit service provider, unlike the purpose of a contract, did not faithfully repay a loan to a community credit cooperative, such as using the loan in repayment of the existing debt and releasing the right to collateral security established at will on the vehicle without the consent of the community credit cooperative, in a case where the credit service provider, unlike the purpose of the contract, did not faithfully perform the repayment of the loan to the community credit cooperative by providing a community credit cooperative and a third party with a vehicle security loan as security and receiving a loan equivalent to the amount of individual vehicle security credit, the crime of fraud is established on the ground that the above loan is deemed to have been obtained by deceiving the community credit cooperative as if the credit service provider had no intent or ability to repay the loan at the time of the loan, and it is recognized that the above loan was obtained by deceiving the community credit cooperative as if it had no intention or ability to do so, and

[1] Article 347 of the Criminal Code / [2] Article 347 of the Criminal Code

[1] Supreme Court Decision 2004Do8651 Decided March 24, 2005 (Gong2005Sang, 693), Supreme Court Decision 2005Do12 Decided October 14, 2005, Supreme Court Decision 2008Do11718 Decided April 9, 2009 (Gong2009Sang, 688)

Defendant

Prosecutor

Incheon District Court Decision 2007No2150 Decided January 31, 2008

The judgment below is reversed, and the case is remanded to the Incheon District Court Panel Division.

The grounds of appeal are examined.

In order for fraud to be established, there should be a causal relationship between deception and the other party’s mistake and delivery of property, or the provision of pecuniary benefits. However, even if there is negligence on the part of the defrauded among the causes of mistake, it is established even in the case of fraud. Meanwhile, insofar as the defendant does not make a confession, the subjective constituent elements of fraud should be determined by taking into account the objective circumstances, such as the defendant’s financial history, environment, details of the crime, and the process of performing the transaction before and after the crime, and the intent of the crime is sufficient not by conclusive intention but by negligence (see, e.g., Supreme Court Decisions 2007Do10416, Feb. 28, 2008; 2007Do8726, Aug. 21, 2008).

After recognizing the facts based on the employment evidence, the court below affirmed the judgment of the court of first instance which acquitted the defendant on the ground that it is difficult to view that the defendant had deceiving community credit cooperatives, on the ground that there was no proof as to the facts charged of this case on the ground that it was difficult to view that the defendant had deceiving community credit cooperatives, and that the loan of this case was made normally by conducting a real inspection on each enterprise operated by the defendant, and that the community credit cooperatives would have already known or could have sufficiently known the circumstances that the loan company operated by the defendant had already known or had been making an investigation by paying more attention to the fact that the loan company was taking a considerable amount of loans from the Japanese community credit cooperatives, etc.

However, such determination by the court below is difficult to accept for the following reasons.

According to the records, the Defendant, on November 6, 201, received loan from Nonindicted Co. 2 under the name of Nonindicted Co. 4, 2003, with the trade name of Nonindicted Co. 3, which was established as collateral security, and received loan from Nonindicted Co. 4 under the name of Nonindicted Co. 1, 2003 to retail business for the name of Nonindicted Co. 3. From July 9, 200. The contents of credit business mainly by borrowing funds from Nonindicted Co. 6’s savings banks or community credit cooperatives to general consumers at higher interest rates. At the time of the instant loan, the Defendant provided loans to Nonindicted Co. 4, which were established as collateral security funds in the name of Nonindicted Co. 1, 200, KRW 200 million, KRW 300 million, KRW 400,000,000,000,000,0000,000,000 won (hereinafter “Defendant Co. 4,000).

In light of these legal principles, it is reasonable to view that the defendant, unlike the purpose of the contract of this case, used the 400 million won loan borrowed under the name of the non-indicted 2 corporation in repayment of the existing debt, and arbitrarily cancelled the right to collateral security established on the vehicle without permission, since the defendant had no intent or ability to repay the debt of this case at the time of the loan of this case, he deceiving the community credit cooperatives as if he did not have an intention or ability to repay the debt of this case, and acquired the loan of this case from the community credit cooperatives, and the crime of defraudation is also recognized. It is reasonable to view that the crime of fraud is also recognized, prior to the execution of the loan of this case, the community credit cooperatives and the employees of the non-indicted 6 corporation visit each of the above companies operated by the defendant to inspect their financial status, etc., and as a result, it cannot be said that the establishment of the crime of

Nevertheless, the judgment of the court below which judged otherwise is erroneous in the misapprehension of legal principles as to fraud and in the violation of the rules of evidence.

Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Si-hwan (Presiding Justice)