[1] The standard point of time for determining the crime of defraudation in fraud by defraudation of transaction goods (=the time of transaction at the time of transaction)

[2] The case reversing the judgment of the court below which found the defendant guilty on the ground that the defendant, who was unable to pay goods price due to temporary financial pressure, had criminal intent from the time of fraudulentation

[1] Whether fraud is established through deception of transaction goods shall be determined by whether there was an intentional intent to acquire goods from a victim by deceptive means as if the victim did not have an intent or ability to repay the price of goods at the time of transaction, even though there is no intention or capacity to repay the price of goods to the defendant as of the time of transaction. Thus, it shall not be deemed to constitute fraud by making it impossible to repay the price of goods in a lump sum

[2] The case reversing the judgment of the court below which recognized the crime of fraud on the ground that the defendant, merely who did not pay goods with temporary financial pressure during the continuous transaction of goods, had the criminal intent to obtain fraud from the time of transaction

[1] Article 347 of the Criminal Code / [2] Article 347 of the Criminal Code

[1] Supreme Court Decision 85Do754 delivered on July 23, 1985 (Gong1985, 1215), Supreme Court Decision 97Do249 delivered on April 11, 1997 (Gong1997Sang, 1518), Supreme Court Decision 98Do180 delivered on March 10, 199 (Gong198Sang, 1111), Supreme Court Decision 99Do1682 delivered on July 23, 199 (Gong199Ha, 1826)

Defendant

Defendant

Daejeon District Court Decision 2001No3125 delivered on September 12, 2002

The judgment of the court below is reversed, and the case is remanded to Daejeon District Court Panel Division.

1. Summary of the facts charged

Since May 26, 199, the Defendant, who is in charge of the business of Hanyang, a punishment of Nonindicted Party 1, was under pressure by establishing a separate factory of Hanyang, resulting in enormous amount of funds needed due to the establishment of the separate factory from the end of May, 199, and was given by Nonindicted Party 1 the explicit order that Nonindicted Party 1 will not handle Japanese acid. Accordingly, even if purchasing the Japanese fright from the victim Kim Jong-stm that was dealing with the Japanese fright, the Defendant was able to obtain the money by fraud from the victim even though he did not have the ability or intent to settle the price normally, despite having no intention or ability to settle the price normally, and on May 26, 199, he would pay the price by fraud within two months from the victim's credit on the part of the victim's self-employed Party 1, who was then supplied the Japanese fright, equivalent to the sum of these KRW 3 million to KRW 3 million, KRW 300,000, KRW 1784,2784.78.

2. The judgment of the court below

The court below, based on the evidence duly adopted by the court of first instance and completed the investigation, found that the representative of Hanyang is a non-indicted 1 who actually engaged in the manufacturing and distribution business of Hanyang, and that the defendant was in charge of his business as his her her her son. The Hanyang has been engaged in transactions with his son due to wholesale purchase from the victim's her son on around 1995 and retail sale to others, but the transaction was suspended at the end of 197. Although the non-indicted 1 ordered the defendant not to handle Japanese son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's Professor's Professor's Professor's 9.

Furthermore, the court below found the defendant guilty on the facts charged of this case on the ground that it was difficult to expect that the transaction of this case toward Japanese mountain is limited to the transaction between the defendant, not the Hanyang party, but the defendant's individual and the native party, and that it was difficult to expect that the Hanyang party's property was used in paying the price of this case purchased by the defendant due to the lack of financial standing due to the expenditure of the fund for the relocation of the factory.

3. The judgment of this Court

A. The court below determined that the defendant was not able to pay the price to the defendant in light of the defendant's property status at the time on the premise that the defendant was individually supplied to the victim of this case, regardless of whether he had been able to receive the delivery of Japan from the victim, but such determination by the court below is not acceptable for the following reasons.

The record reveals that the defendant was investigated as a suspect by the prosecution, and the defendant stated that the transaction of this case to Japanese origin was a personal transaction regardless of the Hanyang party.

However, as the evidence of the court below, the defendant had been engaged in the business of manufacturing and selling domestically to the non-indicted 1's father. When the defendant's father died, the defendant was in charge of manufacturing and research domestically as the president of Korea, and the defendant was in charge of business as a business director. The defendant was engaged in the business by carrying domestically on the vehicle and return to the customer across the country. If the defendant was sent money to the customer, the non-indicted 1's wife, who was in charge of the defendant's accounting, did not receive the money from the victim at the request of the defendant. The defendant continued to receive the money from the non-indicted 1's company's company's company's company's company's company's company's company's company's company's company's company's company's company's company's company's company's company's company's company's non-indicted 9's company's company's trading with the victim's company's company's company's non-indicted 9's company's company's company's company's company's trading.

In light of the above circumstances, even if the defendant was or was operating jointly with the non-indicted 1, who was wholly entrusted by the non-indicted 1, the defendant has been in charge of the business of the Hanyang branch. Transactions with the victim's Japanese toward child was carried out incidentally in connection with the business of the Hanyang branch, which is not a personal transaction between the defendant and the victim. It cannot be deemed that the defendant's personal transaction is not a transaction between the Hanyang branch and the victim. The defendant stated at the prosecutor's office that the transaction toward the Japanese child of this case was the transaction of the defendant's individual. The victim stated the defendant and the non-indicted 1 as the accomplice of the crime of fraud, and made a false statement to the non-indicted 1 favorable to the non-indicted 1.

Therefore, on the premise that the transaction with the victim of this case constitutes the personal transaction of the defendant, it is erroneous for the court below to determine whether the defendant had the ability to pay the price of this case at the time of the transaction based on the property status of the defendant.

B. Whether fraud is established through the defraudation of trading goods shall be determined by whether there was an intentional intent to acquire goods from a victim by means of false words as if the victim would have performed the price of goods, even though there is no intent or ability to repay the price of goods at the time of transaction. Thus, it cannot be deemed that the crime of fraud is not established on the ground that the payment of the price of goods cannot be made in a lump sum due to changes in economic circumstances, etc. after delivery (see, e.g., Supreme Court Decisions 98Do180, Mar. 10, 1998; 99Do1682, Jul. 23, 199).

In light of the above legal principles, it is not acceptable that the court below did not conclude that the defendant had the intention to acquire the goods by deception by making a false statement as if he would pay the price to the victim, even if the defendant received the delivery of the price to Japan from the victim at the time of making the transaction with the victim of this case.

First of all, even after examining the evidence cited by the court below, it is difficult to find out the evidence to find that the defendant had the intention to acquire the goods by deceptive means by making a false statement to the victim while the defendant had no intention or ability to pay the price to the victim at the time of delivery of the Japanese capital from the victim as stated in the facts charged.

Rather, the Defendant’s original unit price of 10 billion won was 10 billion won and sold to the Defendant’s father. After the Defendant’s death, the Defendant’s father was 10 billion won and 100 million won followed the Defendant’s family business, and the Defendant was 10 billion won and suspended the transaction at the end of December 197 from 195. The Defendant was 10 billion won and was 10 billion won and 200 million won, and the Defendant was 10 million won and was 10 million won and was 10 million won and was 100 million won and 3 was 10 million won and 40 million won and 100 million won were 10 million won and 100 million won was 10 million won and 50 million won was 10 million won and 40 million won was 10 million won and 100 million won was 10 million won and more.

In light of such circumstances, it is deemed that the Korea-China Party only appears that the Defendant, who is in charge of the business of the Korea-China Party, did not have any intent or ability to pay the price immediately to the victim even though he did not have any intent or ability to pay the price at the time of the transaction, because the demand for funds was high in connection with the relocation of the factory after the transaction of the Japan-China Party, and was temporarily unable to pay the price for the Japanese Industrial Complex. It is difficult to view that the Defendant acquired the Japanese Industrial Region of this case from the victim, by means of

C. Nevertheless, the court below found the defendant guilty of the facts charged of this case on the ground that the defendant had no intention or ability to pay the price to the victim at the time of delivery by ordering the Japanese head of Japan, and there was an intentional intent to acquire the goods by deceiving the victim and acquiring them by using them. The court below erred by misapprehending the rules of evidence or by misapprehending the legal principles on fraud. The defendant's assertion pointing this out is justified.

4. Conclusion

Therefore, the judgment of the court below shall be reversed and the case shall be remanded to the court below for a new judgment. It is so decided as per Disposition by the assent of all Justices who reviewed the appeal.

Justices Shin Shin-chul (Presiding Justice)