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The defendant's appeal is dismissed.
Reasons
1. Summary of grounds for appeal;
A. In light of the fact-finding, the Defendant was guilty of the facts charged in this case, even though he did not intend to receive the money from the victims by explaining the sale project of the building of this case and claiming financing from the victims by presenting the photo of the building of this case to the victims, the Defendant was guilty of the facts charged in this case. The judgment of the court below is erroneous in the misapprehension of facts and affecting the conclusion of the judgment.
B. In light of the overall sentencing conditions of the instant case, the lower court’s imprisonment (three years of imprisonment) is too unreasonable.
2. Determination
A. The deception as a requirement for a judgment of mistake of facts refers to any affirmative or passive act that has a good faith and good faith to be observed by each other in a property transactional relationship. Among them, deception by passive act refers to a person subject to legal duty of disclosure does not inform the other party of the fact with knowledge that the other party was involved in a mistake regarding a certain fact. If it is obvious that the other party would not have known of the fact in light of the empirical rule of general transaction, the legal duty of notifying the fact is recognized in light of the good faith principle.
In addition, as long as the criminal intent of defraudation, which is a subjective constituent element of fraud, is not the confession of the defendant, it shall be determined by taking into account objective circumstances such as the defendant's financial history, environment, details of the crime, process of transaction, etc. In addition, the crime of fraud is established even by dolus negligence. The willful negligence as a subjective element of the constituent element of the crime refers to the case where it is accepted by expressing that the possibility of occurrence of the crime is uncertain, and it is intended to have dolusent intention.