(영문) 서울동부지방법원 2013.09.13 2013노217

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(영문) 서울동부지방법원 2013.09.13 2013노217

사기미수등

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The judgment of the court below is reversed.

The punishment of the accused shall be determined by a year of imprisonment.

Reasons

1. Summary of grounds for appeal;

A. Error of facts or misapprehension of legal principles (1) The Defendant’s attempted fraud is not only KRW 1.32 billion but also KRW 100 million from the victim I until August 30, 1996 and KRW 500 million from the loan amount on October 14, 1996 and KRW 100 million from November 24, 1998.

Although the defendant did not prove that the sum of the money borrowed from the victim was KRW 1.32 billion, the court below found the defendant guilty of this part of the facts charged on this premise. In so determining, the court below erred by misapprehending the facts and adversely affecting the conclusion of the judgment.

However, even if it is not so, it cannot be objectively apparent that the defendant's assertion in the civil lawsuit filed against the victim is different from the fact, and there was no awareness that the defendant's assertion is obviously false, and there was no fact that the defendant attempted to manipulate evidence, and thus, the defendant cannot be held liable for the crime of fraud in the lawsuit. In so doing, the judgment of the court below which found the defendant guilty of this part of the facts charged is erroneous by misapprehending the legal principles

(2) There is no fact between the S real estate office and the statement as stated in the facts charged of defamation, and there is no fact that the statement was made.

Even if it is recognized that the same statement was made, the Defendant cannot be punished for defamation by publicly alleging false facts.

Nevertheless, the court below erred by misapprehending the facts or by misapprehending the legal principles, thereby finding the Defendant guilty.

B. The sentence imposed by the court below on the defendant (one year and six months of imprisonment) is too unreasonable.

2. Determination

A. In full view of the evidence duly adopted and examined at the lower court’s lower court’s judgment as to the assertion of mistake of facts or misapprehension of the legal doctrine, (1) the attempted fraud was committed.

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