beta
Text
The judgment of the court below is reversed.
A defendant shall be punished by imprisonment for not more than ten months.
Reasons
1. Summary of grounds for appeal;
A. The Defendant had the ability to repay the price of the goods at the time of purchase of mushroom from the victim. However, due to unexpected circumstances at the time of repayment of the price of the goods, the management of the company has deteriorated and failed to repay the price of the goods. Thus, the Defendant did not have the intent to obtain the money through deception.
Nevertheless, the judgment of the court below which found the defendant guilty of the facts charged of this case is erroneous in misconception of facts.
B. The lower court’s imprisonment (one year of imprisonment) against the Defendant is too unreasonable.
2. Determination
A. 1) Determination of the assertion of mistake of facts is based on the objective circumstances such as the Defendant’s financial history, environment, details of the crime, and the process of transaction before and after the crime unless the Defendant makes a confession. Since dolusence as a subjective element of the constituent elements of the crime is also established by willful negligence. The willful negligence refers to the case where the possibility of occurrence of the crime is expressed as uncertain, and the possibility of occurrence of the crime is recognized as well as the awareness of the possibility of occurrence of the crime. Furthermore, it is necessary to consider the possibility of occurrence of the crime in order to recognize the possibility of occurrence of the crime. Determination of whether the actor permitted the possibility of occurrence of the crime should depend on the statement of the offender, rather than on the statement of the offender, and on the basis of the specific circumstances such as the external form of the act and the situation of the act, etc., the court below’s determination should be lawfully confirmed from the perspective of the offender (see, e.g., Supreme Court Decision 2007Do1214, Feb. 26, 2009).