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(영문) 대법원 2017.01.12 2016도15470
특정경제범죄가중처벌등에관한법률위반(횡령)등
Text

All appeals are dismissed.

Reasons

The grounds of appeal are examined.

1. Determination on the grounds of appeal as to Defendant A, D, E, F, and G fraud

A. The relevant legal doctrine (1) In a case where the Defendant denies the criminal intent, which is a subjective element of the constituent elements of the crime, the criminal intent itself cannot be objectively proved, and thus, it is inevitable to prove it by means of proving indirect or circumstantial facts relevant to the criminal intent in light of the nature of the object.

In such a case, what constitutes an indirect or circumstantial fact ought to be determined by a reasonable method of determining the link of facts based on the normal empirical rule with a thorough observation or analysis power (see, e.g., Supreme Court Decision 2005Do8645, Feb. 23, 2006). Meanwhile, an intentional willful negligence, unlike gross negligence, should have the awareness of the possibility of occurrence of a crime and have the intention to deliberate to allow the risk of occurrence of a crime.

Whether an actor has accepted the possibility of occurrence of a crime must be determined by considering how to evaluate the possibility of occurrence of a crime if the general public is based on specific circumstances, such as the form of an act and the situation of an act that is externally revealed without depending on the statement of the offender (see Supreme Court Decision 2004Do74, May 14, 2004, etc.). (2) The joint principal offender under Article 30 of the Criminal Act is jointly committing a crime with two or more persons. In order for a joint principal offender to be established, it is necessary to have committed a crime through a functional control based on the joint principal intent as a subjective element, and the joint principal offender’s intent should be integrated to commit a specific crime with the intention of joint principal, and the intention of joint processing should be transferred to one another by using another’s own act (see Supreme Court Decision 2004Do74, May 14, 2004, etc.).

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