[1] Requirements for the establishment of fraud, and whether fraud is established only in the case of deceiving the defrauded to perform a property-dispositive act that directly causes property loss due to an act or omission (affirmative)

[2] The case reversing the judgment of the appellate court which did not dismiss an appeal on the ground that there was an error of violation of Article 364(4) of the Criminal Procedure Act, in case where the prosecutor was acquitted at the first instance court as to the charge of attempted fraud against the defendant and the prosecutor appealed the appeal

[1] Article 347 of the Criminal Code / [2] Articles 347(1) and 352 of the Criminal Code, Articles 325, 364(4), and 396 of the Criminal Procedure Act

[1] Supreme Court Decision 2005Do9221 Decided July 12, 2007 (Gong2007Ha, 1307) Supreme Court Decision 2013Do14242 Decided February 13, 2014

Defendant

Prosecutor

Attorney Kim Chang-hoon

Gwangju District Court Decision 2016No3440 Decided January 11, 2017

The part of the judgment of the court below regarding attempted fraud is reversed, and the prosecutor's appeal on this part is dismissed. The remainder of the appeal is dismissed.

1. Judgment on the grounds of appeal

A. As to the allegation in the grounds of appeal as to the attempted fraud

1) Fraud is a crime of deceiving another person to omit in mistake and inducing another person to commit an act of dispositive act, and thereby gaining property or property gains. Therefore, fraud is established only where the Defendant deceptions the latter to engage in a property-dispositive act that directly causes property loss due to commission or omission (see Supreme Court Decision 2013Do14242, Feb. 13, 2014, etc.).

2) The lower court upheld the first instance judgment that acquitted the Defendant and his accomplice on the attempted fraud of the instant facts charged on the ground that there was no proof as to the fact that the Defendant and his accomplice committed fraud, on the grounds that, even though the Defendant and his accomplice made a false statement that they would have the victim withdrawn and withdrawn the cash to Nonindicted 1 and Nonindicted 2 in the house, it cannot be deemed that they had the victims deliver or dispose of the cash.

3) Examining the reasoning of the lower judgment in light of the aforementioned legal doctrine, although it is somewhat inappropriate, the lower court did not err by misapprehending the legal doctrine on disposal in fraud, contrary to what is alleged in the grounds of appeal.

B. As to the ground of appeal on the remainder other than the attempted fraud

Although the prosecutor filed an appeal against the remainder of the judgment below, excluding the attempted fraud, the prosecutor did not find any error in the petition of appeal or the appellate brief.

2. Ex officio determination

Article 364 (4) of the Criminal Procedure Act provides that the appellate court shall dismiss an appeal by judgment when it has recognized that the appeal is groundless.

According to the records, among the facts charged in this case against the defendant, the prosecutor appealedd not guilty and appealed by the first instance court. While the court below judged that the prosecutor's appeal on this part is groundless, the court below did not sentence the dismissal of appeal in the order, the court below erred in violation of Article 364 (4) of the Criminal Procedure Act (see Supreme Court Decision 2004Do6432 delivered on September 14, 2006, etc.).

Therefore, the part of the judgment of the court below regarding attempted fraud is reversed, but this part of the case is sufficient for this court to render a judgment, so it is decided directly by Article 396 of the Criminal Procedure Act.

The prosecutor’s grounds of appeal regarding attempted fraud among the facts charged in the instant case are that the act of having the Defendant and the accomplice withdraw the deposit and keep the withdrawn cash in the house by making the victim Nonindicted 1 and Nonindicted 2 make a false statement constitutes deception, and that the judgment of the court of first instance which rendered a judgment not guilty is erroneous in the misapprehension of legal principles as to mistake of facts and disposal in fraud.

However, examining the reasoning of the judgment of the first instance in light of the record, the first instance court did not err by misapprehending the legal principles as to attempted fraud among the facts charged in the instant case on the grounds that there was no proof of the relevant crime, as otherwise alleged in the grounds of appeal.

3. Conclusion

Therefore, the part of the judgment of the court below regarding attempted fraud is reversed, and the prosecutor's appeal on this part is dismissed, and the remaining appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Ki-taik (Presiding Justice)