[1] The meaning of "the network," which is a requirement for fraud, and the case where the exercise of rights as a means of deception constitutes fraud

[2] In a case where the contractor or subcontractor agrees to pay the construction price in installments at the rate of the completed payment calculated in accordance with the contract or subcontract of the construction project, the case where the contractor or subcontractor claims for the completed payment by neglecting the construction volume and receiving the payment for the completed payment is recognized as fraud and the standard

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

[1] Supreme Court Decision 96Do1405 Decided October 14, 1997 (Gong1997Ha, 3551), Supreme Court Decision 2009Do7459 Decided October 15, 2009, Supreme Court Decision 2010Do14856 Decided March 10, 201

Defendant

Defendant

Law Firm Dongin (LLC, Attorneys Lee Sang-hoon et al., Counsel for defendant-appellant)

Seoul High Court Decision 2015No507 decided July 10, 2015

The appeal is dismissed.

The grounds of appeal are examined.

Inasmuch as deception, which is a requirement for fraud, refers to any affirmative or passive act that generally assumes the fiduciary duty and good faith to observe each other in a property transaction, it does not necessarily mean an important part of a juristic act, and it is sufficient if it is based on the facts of judgment that the perpetrator wishes to dispose of the property by omitting the other party into mistake (see Supreme Court Decision 2009Do7459, Oct. 15, 2009, etc.). In the event of the exercise of the right by means of deception, if the exercise of the right by means of deception comprehensively observe the act and means belonging to the exercise of the right, and such deception cannot be acceptable as a means of exercise of the right by social norms, the act of exercising the right constitutes fraud (see Supreme Court Decision 96Do1405, Oct. 14, 1997, etc.).

In cases where a contractor or subcontractor agrees to pay the construction price in installments in accordance with the ratio of the total construction price to the progress payment calculated in the contract or subcontract of the construction project, if the contractor or subcontractor claims for progress payment by withdrawing the quantity of the construction work and the receipt of such payment is in breach of the duty of trust and good faith in the transactional relationship, and it can be deemed that such act has reached the extent that it cannot be accepted as a means of exercise of the right by social norms. Whether such an act is acceptable under social norms should be determined by taking into account the difference between the design quantity and the construction quantity, the cause of the difference between the quantity of the construction work, the method of determining the contract price

The lower court convicted Nonindicted Co. 1 of the facts charged in the instant case on the ground that, in full view of various circumstances, including the method of price determination recognized by the employment evidence, comprehensively considering the contents of the subcontract agreement concluded between Nonindicted Co. 1 and Nonindicted Co. 2 and the contents of the execution, the quantity and details of the construction, the process of calculating progress payments, and the method of demanding and paying progress payments, etc., the Defendant, who is the site manager of Nonindicted Co. 1, falsely notifies Nonindicted Co. 1, the amount of construction of skV, which serves as the basis for calculating the percentage of the base and the amount of the progress payments, constituted fraud, thereby allowing Nonindicted Co. 1 to pay the total amount of the progress payments according

Examining the reasoning of the lower judgment in light of the aforementioned legal doctrine and the evidence duly admitted by the first instance court, it is sufficient to view that the Defendant’s act of claiming the payment for the completed portion by the Defendant to reach an extent that it cannot be acceptable as a means of exercising social norms. Therefore, the lower court did not err by exceeding the bounds of the principle of free evaluation of evidence inconsistent with logical and empirical rules or by misapprehending the legal doctrine regarding

Therefore, the appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Poe-young (Presiding Justice)