(영문) 광주지방법원 2017.07.12 2017노1909 | 리걸엔진

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Reasons

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크기(pt)

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줄 간격

자간(%)

(영문) 광주지방법원 2017.07.12 2017노1909

사기등

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All appeals by the defendant and the prosecutor are dismissed.

Reasons

1. Summary of grounds for appeal;

A. Defendant 1’s misunderstanding of the facts (the fraud against the victim P) (the Defendant borrowed a sum of KRW 10 million around November 16, 2012 from the victim P (hereinafter “victim”) and KRW 20 million around May 24, 2014, including KRW 10 million, from around May 24, 2014 (hereinafter “each of the instant money”). However, the Defendant intended to repay the victim a sum of KRW 16.9 million with the principal and interest borrowed for two years. At the time of borrowing each of the said money, the Defendant intended to pay the victim the borrowed money.

In other words, the defendant did not have any intention to commit fraud at the time of borrowing each of the above money.

Although the court below found all of the facts charged guilty, the court below erred by misapprehending the facts and adversely affecting the conclusion of the judgment.

2) The sentence of the lower court’s unfair sentencing (two years of imprisonment) is too unreasonable.

B. The Prosecutor’s sentence of the lower court is too unhued and unreasonable.

2. Determination

A. Judgment on the Defendant’s assertion of mistake of facts 1) Unless the Defendant makes a confession, the criminal intent of defraudation, which is a subjective constituent element of fraud, should be determined by comprehensively taking into account the objective circumstances such as the Defendant’s financial history, environment, details of the crime, and the process of performing transactions before and after the crime. The criminal intent is not definite intention but dolusent intent (see, e.g., Supreme Court Decision 2007Do10416, Feb. 28, 2008). In light of the above legal principles, health care for the instant case; (i) the following circumstances acknowledged by the evidence duly adopted and investigated by the court below; (ii) the Defendant did not have any property at the time of borrowing each of the instant funds from the damaged party; and (iii) the Defendant committed this case’s debt amount to KRW 300,000,000,000,000 to KRW 130,000,000 from KRW 14,216

참조판례

-대법원 2008. 2. 28. 선고 2007도10416 판결

유사 판례

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