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(영문) 수원지방법원 2016.06.10 2015노7518
사기
Text

The defendant's appeal is dismissed.

The request of the applicant for compensation shall be dismissed.

Reasons

1. Summary of grounds for appeal;

A. The judgment of the court below which found the defendant guilty of the facts charged of this case, even though the defendant did not have any intention to repay the money from the damaged party, because he did not intend to do so, is erroneous by misunderstanding the facts and thereby affecting the conclusion of the judgment.

B. The sentence sentenced by the court below to the defendant (one year of imprisonment, two years of suspended execution, observation of protection and 120 hours of community service) is too unreasonable.

2. Determination

A. The criminal intent of defraudation, which is a subjective constituent element of fraud determination as to the assertion of facts, shall be determined by comprehensively taking into account the objective circumstances such as the defendant's financial history, environment, contents of the crime, process of transaction, and relationship with the victim, etc., as long as the defendant does not confession (see, e.g., Supreme Court Decisions 2004Do74, May 14, 2004; 2006Do8418, Apr. 27, 2007). In light of the following circumstances recognized by the evidence duly adopted and investigated by the court below, it can be sufficiently recognized that the defendant had the criminal intent of defraudation at the time of the crime of this case, so this part of the defendant's assertion is without merit.

(1) On January 2014, the Defendant borrowed money to the victim with insufficient money to pay as a deposit for lease. On January 29, 2014, in order to secure the above loan obligation, the Defendant prepared a certificate of fairness in the contract for lending and borrowing of money with the effect that “the Defendant borrowed KRW 20 million from the victim, but, from February 2014 to the end of each month, would make installment payments of KRW 200,000,000 at the end of each month.”

(2) Since then, the Defendant paid only KRW 1.5 million to the victim on February 21, 2014, and KRW 3 million on January 28, 2015.

(3) At the time of borrowing money from the injured party, the Defendant had no particular property, and there was almost no money remaining if the Defendant excluded the living expenses from the monthly average of KRW 1.3 million or KRW 1.4 million.

(d).

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