[1] Where the exercise of rights by deception constitutes a crime of fraud

[2] In a case where the defendant, who filed a lawsuit seeking the implementation of the procedure for registration of ownership transfer of real estate and received a final judgment in favor of the court ordering the performance without the conditions of simultaneous performance, agreed to make a false statement as if he would deposit the balance of the purchase and sale even if he/she acquired the ownership of real estate, and then acquired the ownership of real estate at will, the case holding that the defendant's act goes beyond the scope permitted as a means of exercise of rights by social norms and constitutes deception

[1] Article 347 (1) of the Criminal Code / [2] Article 347 (1) of the Criminal Code

[1] Supreme Court Decision 2002Do6410 Decided June 13, 2003 (Gong2003Ha, 1557) Supreme Court Decision 2003Do4914 Decided December 26, 2003 (Gong2004Sang, 298) Supreme Court Decision 2009Do295 Decided July 9, 2009 (Gong2009Ha, 1373)

Defendant

Defendant

Attorney Lee Won-soo

Seoul Western District Court Decision 2010No893 decided October 21, 2010

The appeal is dismissed.

The grounds of appeal are examined.

According to the reasoning of the judgment below, the court below affirmed the judgment of the court of first instance which found the defendant guilty of all the charges of this case on the ground that it is sufficient to sufficiently recognize that the defendant did not have the intent or ability to deposit 250 million won with the victim even if he/she acquired the ownership of the real estate of this case owned by the victim even if he/she acquired the ownership of the real estate of this case, and therefore, there is sufficient reason to view that he/she had a criminal intent to acquire by deceit. In light of the records, the court below's above fact-finding and judgment are just and acceptable, and there is no error of law of finding facts beyond the limit of

In addition, in the case of the exercise of rights by means of deception, if such deception is to the extent that it is not acceptable as a means of exercise of rights by social norms, the act of exercise of rights constitutes fraud (see Supreme Court Decision 2009Do295, Jul. 9, 2009, etc.). Thus, as asserted in the grounds of appeal, even if the defendant can solely make a transfer registration with a final and conclusive judgment in favor of the victim to order the implementation of the procedure for the transfer of ownership of the instant real estate without any simultaneous performance condition, the defendant did not make a transfer registration but made a false statement as if he did not deposit the remaining amount to the victim after the above judgment became final and conclusive, the defendant agreed with the victim that the ownership of the instant real estate should be transferred to the victim at will after the transfer of ownership of the instant real estate, and as long as the ownership of the instant real estate was transferred to the defendant as a means of exercise of rights by the defendant, such act constitutes a fraudulent act which is beyond the scope of the final and conclusive judgment which can be acceptable by social norms.

Meanwhile, under Article 383 subparag. 4 of the Criminal Procedure Act, an appeal on the grounds of unfair sentencing is allowed only in cases where death penalty, life imprisonment, or imprisonment or imprisonment without prison labor for more than ten years has been imposed. Thus, in this case where the defendant was sentenced to a minor punishment, the argument that the amount of punishment is unreasonable is not legitimate grounds for appeal

Therefore, the appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Si-hwan (Presiding Justice)