2017Do14960 Fraudulent

S (Name A prior to the opening of name)

Defendant

Attorney T, V,W, C

Seoul Northern District Court Decision 2016No2190 Decided September 1, 2017

December 5, 2017

The guilty portion of the judgment of the court below is reversed, and that part of the case is remanded to the Panel Division of the Seoul Northern District Court.

(c)

The grounds of appeal are examined.

1. Frauds shall be delivered property by deceiving other persons, leaving them in mistake, and inducing a dispositive act;

between fraud, mistake, or property disposal act, which is constituted by obtaining property benefits;

There must be causations. On the other hand, there must be fraud that a certain act causes others to fall into mistake.

whether there is a causal relationship between such deception and property disposal, and whether there is a causal relationship between such deception and property disposal

General taking into account the circumstances at the time of the conduct, such as the other party's knowledge, character, experience, occupation, etc.

Determination by the enemy and objective (see, e.g., Supreme Court Decision 2011Do8829, Oct. 13, 2011)

(ix) the Commission;

In addition, the criminal intent of defraudation, which is a subjective constituent element of fraud, is so long as the defendant does not confession.

The history, environment, the details and details of the crime, the process of the future implementation, etc. of the accused, etc. before and after the commission;

In full view of objective circumstances, it is inevitable to determine the conviction on the other hand as a judge.

the facts charged are true to the extent that there is no reasonable doubt

Defendant, even if there is no such evidence, should be based on evidence of probative value.

Even if there is doubt of guilt against the person, the interest of the defendant must be determined by the interests of the defendant.

The same applies to the recognition of the criminal intent, which is a subjective element of the crime of fraud (Supreme Court Decision 8 August 2013).

23. Supreme Court Decision 2012Do6011 Decided January 2, 201

2. The summary of the charge of fraud around July 2014 among the facts charged in the instant case in which the indictment was modified by the lower court:

Even if the defendant receives a advance payment from the victim, he/she may supply a sprinkl at the time of promise.

damage in a coffee shop in Seoul Special Metropolitan City, Nowon-gu around July 17, 2014, even though he did not have any intention or ability.

“In Korea, approximately 2,00-3,000 U.S. customers have been ordered to pay in advance 53,155;

Note 212 The Note to the Note to the Agreement on August 2014 or the Note to the Agreement on September 1, 2014 to the Agreement on August 201.

b)Recilation by transfer of KRW 53,155,212 from the victim with a false statement to the effect that it is ";

That is the fact that it had been.

3. In full view of the adopted evidence, the lower court consistently determined the delivery date.

On the other hand, the defendant stated that the time when the victim asserts is the date of production or delivery of clothing.

The defendant has not made a consistent statement on the issue of the supply contract, and the defendant has made a supply contract simultaneously.

Part 210 of the spploak clothes presented to the victim by September 2014, and Chapter 350 by August 8, 2014.

to the extent that the goods are supplied, and the color and the number of goods by water control are specified;

and, even in the supply contract, the remaining time of payment is specified on September 1, 2014, and the defendant's order sheet

without consistent with the reasons not imported in accordance with the records or orders of this paper

It only sets up a defense that is difficult to obtain, and on November 25, 2014, the dialogue with the victim is divided into eight months;

The crime of defaulting on the part of a person, because the person was unable to faithfully carry out his or her productions for a period of not more than nine months.

In light of the fact that the defendant and the victim stated that it was ....", until August 2014 between the defendant and the victim, etc.

350, until September 2014, there was an agreement under which the supply of Chapter 210 sprinks was made.

The victim is determined by the court of first instance that part of the amount secured in advance by the defendant in the court of first instance;

The purport that it was true that the documents were put into storage in September 2014, because of the display of the relevant documents.

If the victim considered that the clothes have not been supplied until then, the entire

In paying the advance payment to 30% of the contract amount, the contract would not have been concluded until the contract is paid.

In light of the fact that the victim appears, it is recognized that the victim believed the defendant's horse and delivered the advance payment.

for reasons, the time of delivery to the effect that the goods will be supplied from August to September 2014.

The defendant's assertion that there is no deception of the victim as to this part of the facts charged shall be rejected.

was found guilty.

4. However, it is difficult to accept the above determination by the court below for the following reasons.

A. The record reveals the following facts.

(1) The defendant is an importer of clothes, and the victim is the victim from 2010 to wholesale and retail business of clothing and miscellaneous goods.

The defendant and the victim are children of the victim on July 17, 2014.

Import and delivery of clothing for use 560 in total, 560, including clothing 220

Contract for the Supply of Clothing (hereinafter referred to as “instant supply contract”) which includes the terms to be agreed upon;

on the same day, the victim is equivalent to 30% out of the price in Chapter 560 of the soft Articles 560.

53,155,212 won was paid to the defendant under the pretext of advance payment.

② At the time of the instant supply contract, the victim is entitled to the contract for one year from the date of the said contract.

If a product is ordered in writing or by e-mail, the defendant shall deliver it, and the victim shall accept the product.

Although the defendant is obligated to pay the price (Articles 4 and 10), the defendant is entitled to pay the price from the victim.

There is no indication as to when the text should be supplied.

(3) The total amount of orders for the year concerned shall be the imported goods, such as original crowdfunding products.

the date of release of the product according to the capacity to operate the manufacturing factory, etc.

In consideration of the occurrence of the cancellation of the text or order, the production and release of the product at each stage by the manufacturer;

This is due to the supply of products in order according to the order of common order.

In general, it is not easy to specify the time of delivery from the standpoint of the importer. On the other hand, the case is

In 2013, prior to the conclusion of the supply contract, the victim would give B/B to the defendant against the contrary.

There is a deficit in selling the imported clothing, and when the victim supplied the clothing at the time, the police officer in November.

From the end of December to the end of December, 200.

(4) On October 23, 2014, the Defendant, on October 23, 2014, Chapters 122, including Chapter XIII of Child's Clothing.

The defendant delivered a single-lane to the victim, and the victim received the same without any objection and thereafter received the same.

Separate from the advance payment paid at the time of the wage contract, the sum of the clothes in the above Chapter 122 until October 24, 2014

74,766,410 won was paid to the defendant. After that, on November 3, 2014, the victim made the above payment to the defendant.

Since 13 of the clothing supplied as above appears to have been produced in China, it shall be confirmed.

The text message was sent to the defendant to the effect that the communication was requested.

⑤ On the other hand, the Defendant and the victim separate from the instant supply contract on the sppug clothes.

The victim has been conducting negotiations related to the contract for the supply of the Slun Slun Slun's clothing.

Around July 1, 2014, around July 1, 2014, the name, color, order quantity, etc. of the goods of the Nos.S. clothes (total 968) shall be written

Along with the x-cell file, an e-mail with the title "Nomina" was sent, and the Defendant sent the e-mail on 2014.

11.Plapping 54 of children's sping-to-king-king-king-king-king-king-king-king-

The victim notified that he will take over the sprinks. However, the victim's sprinks are fixed regarding the spice clothes.

Since the supply contract was not concluded, it cannot be accepted. The defendant refused to accept the supply contract, and the defendant refused to do so.

S If you do not accept the clothing, the agent that the Defendant had to supply under the supply contract of this case.

I tried not to supply the pubic clothes any longer.

6. The victim, while accepting Chapter 136 of the above Nos. 136, Nov. 20, 2014

On November 24, 2014, the defendant paid KRW 30 million, which is a part of the purchase price, to the defendant.

Additional payments of KRW 30 million under the pretext of part payments of Chapter 136 for Nos.S. Articles 136; and

Defendant demanded injury, however, on the ground that the liquidation of the goods was reduced, and on the other hand, the injury was caused.

He did not comply with the request of any person.

7) On November 2014, 2014, where the victim supplies the defendant with the above Nos. 136 Chapter 136.

In other words, although the defendant had already been transferred to another customer, he refused to do so.

The victim returned 30 million won to the victim out of the price for the Royn's clothes. The victim returned to the victim.

Defendant, on the ground that products have been produced in China and have been produced in China, and that the quality has deteriorated.

to accept the 54th chapter of the child's unclaimed clothes, which had not been accepted until then;

had been.

8. Around December 2, 2014, the victim notifies the defendant that he/she will terminate the instant supply contract.

Then, on December 4, 2014, the 53,155,212 U.S. dollars paid to the defendant on December 4, 2014

Although it was demanded to return the amount after deducting the price in Chapter 54, it was from January 2015.

The money for the above clothes began to be deducted and the amount to be returned in full.

9. On February 23, 2015, the defendant did not respond to the request for return of advance payment.

The plaintiff asserts that the contract of this case was concluded by deceiving the victim and the advance payment was not returned.

On the other hand, a criminal complaint was filed against the defendant as a fraud.

(10) A victim shall file an application for arbitration with the Korea Commercial Arbitration Board around May 2015, separate from the above criminal complaint.

On March 23, 2016, the Defendant filed a counterclaim, and the Korea Commercial Arbitration Board filed a counterclaim, and the Defendant on March 23, 2016.

The person shall return the advance received to the victim under the supply contract of this case, and the victim shall accept the advance payment.

the defendant at the same time as the delivery of the 54 children's unclaimed clothes for which it was refused to do so;

Arbitral Award containing the content of payment, etc. was made.

B. We examine the above facts and the following circumstances revealed therefrom.

Examining the reasoning of the court below and the evidence submitted by the prosecutor alone in light of the legal principles

In the case of deception by deception, the victim was accused or the victim was deceiving by deception.

Since it cannot be readily concluded that the advance payment was made by mistake, this part of the facts charged is fair.

It is difficult to view that there is no room for doubt to be proven beyond the doubt.

(1) The injured party shall determine that the time of delivery is important due to the characteristics of the seasonal clean clothes, which are seasonal goods.

The defendant is entitled to deliver the above clothes within one month from the date when the contract was concluded.

8. As to the notice of this case’s supply contract and payment of the advance payment

A. However, the victim specified the delivery time at the time of the instant supply contract

(1) The supply contract of this case has no direct evidence in addition to the statement made by the victim, and the time of delivery, like the victim's assertion

If it was an important matter to decide on whether to conclude a contract, the content thereof shall be stated in the contract.

The reasons are not easily explained.

(2) The victims have been engaged in clothing and miscellaneous retail business for several years and themselves in 2013.

Since this paper has been supplied to the defendant, the time and time of delivery of the product by the manufacturer.

The reality of the industry in which the time of delivery by the importer is limited to a certain degree is relatively well known.

the time of delivery of the product in the order sheet produced by the defendant at the time of the contract.

The extent to which the time of delivery of the substitute lecture was temporarily presented even if there was a statement showing it.

to conclude that the delivery period goes beyond the meaning of the contract is incorporated into the content of the contract.

It is difficult to do so.

(3) A victim shall continue to exist at least one month from the time of delivery under an agreement that he/she claims.

23.After receiving from the defendant, without any particular objection, copies 122 of the sprinking clothes, the proceeds thereof;

All payments have been made from that time, and even after November 20, 2014, the defendant was paid from that time to that time on and after November 2014.

There was a repeated request for the delivery of the sprinkl and sprinkl. This is time of delivery

to conclude the instant supply contract and to pay the advance payment by fraudulent mistake on such terms.

The circumstances are inconsistent with the assertion of the victim.

(4) Whether the defendant and the victim have defects in the spprink clothes for children and in the sprink clothes for children

have failed to resolve the dispute arising out of the opinion on whether to enter into a supply contract;

In the end, the instant supply contract is terminated by asserting a breach of mutual contract.

In the process, the Defendant’s total sum of the prepaid and intermediate payments received in relation to the No.S. clothes.

60,000,000 won immediately was returned to the victim, but the victim did not take over;

The scope of return varies depending on whether the purchase price of the Sploak clothes has been deducted, under the instant supply contract.

The advance payment has not been returned, and the victim has filed a criminal complaint with the defendant as a means to receive the return.

In light of the implementation process and the development of the dispute, the defendant seems to have been accused.

No person shall enter into the instant supply contract by deceiving the victim from the beginning and receive the advance payment.

That is, it is difficult to dismiss the defendant's legal action easily.

C. Nevertheless, the lower court: (a) laid a spug sprink by the Defendant from August to September 2014.

A false statement was made that the victim would be provided with clothing up to that time, even though there was no intention or ability to demand it.

c) The facts charged in this part, recognizing that the victim delivered the advance payment to the defendant by her child;

B. In so determining, the lower court erred by misapprehending the legal doctrine on fraud.

The lower judgment affected the determination. The ground of appeal assigning this error is with merit.

5. Therefore, without further proceeding to decide on the remainder of the grounds of appeal, the part of the judgment below guilty.

and the case shall be remanded to the court below for a new trial and determination, and the participating party shall be

It is so decided as per Disposition by the assent of all participating Justices.

Justices Kim Jae-sik, Counsel for the defendant

Justices Park Young-young

Justices Kim Chang-tae, Counsel for the defendant

Justices Lee Dong-won