(영문) 광주지방법원 2016.10.18 2016노1566 | 리걸엔진

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(영문) 광주지방법원 2016.10.18 2016노1566

사기등

Text

Of the judgment of the court below, the part on Defendant B is reversed.

Defendant

B shall be punished by imprisonment for a year and eight months.

. Prosecutors;

Reasons

1. Summary of grounds for appeal;

A. Defendant B1) misunderstanding the fact that the Defendant did not express the intention that AC would not rent the hospital at the time of receiving the lease deposit from AH, and thus did not notify AH of the false fact. Even if AC said that AC would not rent the hospital, the Defendant intended to rent the hospital to another doctor on the condition that AH would allow AH to operate the cafeteria, and even if the lease contract is terminated at the time of the termination, the Defendant had the ability to return the lease deposit to AH. 2) The lower court’s sentence of unfair sentencing (i.e., imprisonment with prison labor for one year and eight months, and imprisonment with prison labor for a second instance: 4 months) is too unreasonable.

B. The prosecutor Defendant A, who is well aware that the lease of state-owned land was against theO, had the authority to dispose of it without the O’s permission, and concluded a lease contract with the victim, is recognized as the crime of defraudation.

2. Prior to the judgment on the grounds for appeal ex officio, this Court decided to consolidate the appeal cases against the judgment of the court below, and the judgment of the court below against Defendant B is in a concurrent crime relationship under the former part of Article 37 of the Criminal Act, and a single sentence should be imposed within the term of punishment, which increased concurrent crimes pursuant to Article 38(1) of the Criminal Act. As such, among the judgment of the court below, the part on Defendant B among the judgment of the court below cannot be maintained.

However, the argument of misunderstanding of facts or misunderstanding of legal principles against Defendant B and the prosecutor is still subject to the judgment of this court, and we will examine below.

3. The deception stated in the facts charged in the instant case regarding Defendant B’s assertion of mistake of facts is likely to allow Defendant B to take the place of AC at the hospital, despite that Defendant B did not have the intent and ability to lease the restaurant operating right within the convalescent hospital.

참조조문

-형법 제38조 제1항

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