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(영문) 서울중앙지방법원 2017.04.20 2017노39

The defendant's appeal is dismissed.


1. Summary of grounds for appeal;

A. On September 2, 2013, the Defendant sent KRW 10 million to the victim C a false or electrical construction on or around September 2, 2013

In addition, there was no statement to the purport that “the Defendant did not make a statement to the effect that it was transferred to the L Co., Ltd. (hereinafter “L”) that was in charge of 30 million won by leaving the Defendant’s money of KRW 10 million remitted by the victim C, and did not use it for personal purposes. As such, the Defendant did not deceiving the victim and defraud the money.

B. The sentence sentenced by the lower court to the Defendant (six months of imprisonment) is too unreasonable.

2. Determination

A. 1) The deception as a requirement for fraud refers to any affirmative or passive act that generally assumes the fiduciary duty and good faith to each other in the transactional relationship of property. It does not necessarily require that it is a major part of a juristic act. It is sufficient if it is about the basic fact of a judgment for a perpetrator to make a disposition of property which the other party wishes by omitting the other party into mistake. Whether a certain act constitutes deception that causes a mistake of another person should be determined objectively in light of the specific circumstances at the time of the act, such as the transactional situation, the other party’s knowledge, experience, and occupation.

In addition, insofar as the criminal intent of defraudation, which is a subjective element of fraud, is not a confession by the defendant, it is inevitable to determine by taking into account the objective circumstances such as the financial history, environment, details and details of the crime before and after the crime, and the process of transaction execution, etc. The criminal intent is not a conclusive intention, but a willful negligence is sufficient (see, e.g., Supreme Court Decision 2009Do7459, Oct. 15, 2009). 2) Based on the above legal principles, the evidence duly adopted and examined by the court below and the trial court can be comprehensively identified.