(영문) 대전지방법원 2016.06.16 2016노509 | 리걸엔진

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(영문) 대전지방법원 2016.06.16 2016노509

사기

Text

The judgment of the court below is reversed.

Of the facts charged in the instant case, the Defendant is not guilty. Of the facts charged in the instant case, the Defendant is not guilty.

Reasons

1. Summary of grounds for appeal;

A. In fact, the victim was aware that it was economically difficult for the defendant, and the defendant lent money under the condition that the defendant deducteds the money from the main point of the operation of the victim. The defendant's failure to repay the borrowed money is due to the deterioration of the defendant's health and the fact that the damaged person arranged the main point. Thus, the defendant is not by deceiving the victim and by deceiving the victim.

B. The unfair sentencing of the lower court (an amount of one million won) is too unreasonable.

2. Where an application for changes in indictment is filed by a prosecutor who withdraws all of the facts charged in substantive concurrent relation with the judgment ex officio (in cases of an application for changes in indictment for which the whole indictment is withdrawn, if it does not meet the form of application for revocation of indictment, it shall be deemed revocation of prosecution and dismissed (see Supreme Court Decision 88Do67, Mar. 22, 198). According to the records, the prosecutor applied for changes in indictment with the content that one million won of the facts charged in the instant case was excluded from the facts charged orally at the sixth trial on February 3, 2016, and the lower court notified the same day.

However, since the facts charged in the instant case, which were excluded as above, are in a substantive relationship with the remaining facts charged, the prosecution should be deemed to have been revoked in accordance with the amendment of indictment.

In such a case, the court below should have decided to dismiss the indictment against the above facts charged for which the indictment was revoked pursuant to Article 328 (1) 1 of the Criminal Procedure Act. However, the court below decided to dismiss the prosecution without notifying only the permission of changes in indictment at the six-time trial date, and did not decide to dismiss the prosecution thereafter.

In conclusion, the judgment of the court below is not made by omitting judgment on the facts charged.

참조판례

-대법원 1988. 3. 22. 선고 88도67 판결

유사 판례

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