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(영문) 대구지방법원 2019.06.27 2019노641

The judgment below

The guilty portion shall be reversed.

The defendant shall be punished by imprisonment with prison labor for not less than five months, Nos. 1, 2, 3.


1. Summary of grounds for appeal;

A. Defendant 1) misunderstanding of facts (as to the part on the crime No. 3 and 4 of the judgment of the lower court), the Defendant did not have solicited the victim H to make an investment. Nevertheless, the victim H remitted the money to the Defendant, and the Defendant did so with the said money. The Defendant did not have any criminal intent to defraud the Defendant. 2) The lower court’s sentencing (the crime No. 3: imprisonment with prison labor for June, 2, and 4: imprisonment with prison labor for 6 months, and imprisonment with prison labor for 6 months) is too unreasonable.

B. A prosecutor 1) According to the evidence submitted by the prosecutor of mistake of facts (as to the acquittal part of the judgment of the court below), since the defendant is deemed to have no intention or ability to pay transport charges to the victim P at the time of committing the crime, the criminal intent of the defendant's defraudation may be sufficiently recognized. 2) The sentencing of the court of unfair sentencing

2. Determination

A. 1) The criminal intent of defraudation, which is a subjective constituent element of a crime of fraud, cannot 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, insofar as the Defendant does not make a confession, and the criminal intent is not a conclusive intention, but a willful intention is also sufficient (see, e.g., Supreme Court Decisions 2007Do10416, Feb. 28, 2008; 2007Do8726, Aug. 21, 2008; 2008Do1697, Jun. 23, 2009). In light of the above legal principles, in light of the following circumstances acknowledged by the court below by the evidence investigated by the court below, the fact that the Defendant deceiving the victim H as stated in the judgment of the court below is recognized.

The lower court did not err by misapprehending the facts and adversely affecting the judgment.

① The victim H, at the investigative agency, recommended the Defendant to make an investment by deeming that the Defendant would sell the entire housing units, after executing the Defendant’s housing site creation project, and then sent money as the land contract was concluded thereafter.