2014Do17409 A. Fraud

(b) Fraud:

(c) Embezzlement;

1. A;

2. B

Defendants

Attorney BA (Mediation for the Defendant)

Incheon District Court Decision 2014No660 Decided 11, 2014

2015,26 February 26

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

The grounds of appeal are examined.

1. As to embezzlement

A. According to the reasoning of the lower judgment, the lower court determined as follows.

1) The lower court acknowledged the fact that Defendant A sold each of the instant real estate under the name of the husband F of the victim, and requested the purchase of each of the instant real estate in Incheon City (hereinafter referred to as “each of the instant real estate”) from the purchase price, and that Defendant A conspired to sell 9,900,000 won out of the purchase price of each of the instant real estate for the victim and paid 580,000,000 won as the purchase price of “Ycheon-gu Incheon-gu Gabble Housing (hereinafter referred to as “house in Mancheon-gu”) under the name of the victim, Seocheon-gu dong-gu Gabble Housing (hereinafter referred to as “house”) and 43,239,239,970 won, including various taxes and brokerage fees, and 8,005,00,000 won remitted to the victim as the purchase price, and without returning it to the victim at his discretion at around the time of embezzlement, and without returning it to the victim.

2) On the other hand, the court below rejected the Defendants’ assertion on this part on the grounds that there was no delegation or agreement between the Defendants and the victim on the part of the Defendants on the part of the method of recognition (if the seller sells goods to the broker at a certain amount, the broker shall sell the amount in excess of that amount and the seller shall be limited to the amount determined by the broker, and the difference between the seller shall be brought about as a result of recognition work).

B. Examining the evidence duly adopted and examined by the lower court and the first instance court, the lower court was justifiable to have determined that the victim cannot be deemed to have delegated or consented to sell each of the instant real estate to the Defendants by way of recognition work. However, it is difficult to accept the lower court’s determination on the amount of embezzlement of KRW 241,660,030, excluding KRW 623,239,239,970, total purchase price of each of the instant real estate in Incheon City and KRW 85,000,000, and KRW 241,660,000, excluding the purchase price of each of the instant real estate in Incheon City as well as various taxes and brokerage fees due to the purchase of housing, etc.

1) Defendant A was delegated with the content that each of the instant real estate was sold by the victim and the purchase price of the housing located in Incheon City and Incheon. Of the sale price of each of the instant real estate, it is reasonable to use the cost as an ordinary expense in the process of selling the instant real estate, and even thereafter, it is anticipated that such a disbursement will be approved by the victim. The Defendants cannot be deemed to have used the money for personal purposes from the intent of unlawful acquisition.

2) The Defendants asserted that the lower court should have naturally disbursed the money to the husband F of the victim, who is the owner of each of the instant real estate, in the course of selling each of the instant real estate at the lower court. ① Defendant A’s 9,120,000 won paid to AF, the total amount of KRW 1,080,000 paid by the Defendants to AF, and KRW 2,940,000 paid by the Defendants to AF as the commission for certified judicial scrivener’s expenses, and KRW 61,692,876, and KRW 76,90,000,000 paid by the Defendants for the above FF, the sum of KRW 61,692,876, and KRW 2,067,120,000 paid by Defendant A by proxy, may not be deemed to have used the said money for personal purposes. In light of the records, there is evidence supporting the above assertion.

3) According to the statement in the complaint, the victim is aware of the fact that he embezzled the proceeds of selling each real estate of this case, and that the amount of KRW 62,00,000 is excluded from the amount of embezzlement when he files a complaint.

4) According to the investigation records, on December 3, 2009, a real estate broker AC could have received KRW 18,000,000 from Defendant A, and the above AC appeared as a witness at the first instance court and stated that KRW 9,400,000 as the case cost with respect to the sale of K and 0 of each of the instant real estate, and KRW 18,000,000 as the case cost with respect to the sale of M and N among the instant real estate.

5) If so, the court below should further examine the process of paying KRW 76,900,00 as claimed by the defendants and the process of paying KRW 27,400,00 to the above AC, and judged that the defendant's embezzlement should have been determined by judging whether the expenses normally incurred in the course of selling the real estate of this case would be reasonable and even after the expenses would have been paid by the victim. However, it cannot be said that there was a delegation or agreement between the defendants and the victim on the sale of each of the real estate of this case by the method of recognition and writing. Thus, the court below erred by misapprehending the legal principles as to the establishment of embezzlement, which affected the conclusion of the judgment. The ground of appeal assigning this error is with merit.

2. As to the fraud and attempted fraud

Examining the reasoning of the lower judgment in light of the evidence duly admitted by the lower court and the first instance court, the lower court is justifiable in finding the Defendants guilty of fraud and attempted fraud among the facts charged in the instant case, and contrary to what is alleged in the grounds of appeal, the lower court did not err by exceeding the bounds of

3. Scope of reversal

As long as the lower court cannot maintain part of the part of the crime of embezzlement against the Defendants, it shall reverse the entire part of the crime of embezzlement, and further, this part shall be sentenced to a single punishment in relation to the concurrent crimes under the former part of Article 37 of the Criminal Act with the crime of fraud and attempted fraud, which the lower court found guilty. Therefore, the lower court’s judgment should be

4. Conclusion

Therefore, without further proceeding to decide on the assertion of unfair sentencing, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices.

Justices Cho Jong-hee

Justices Lee Sang-hoon

Note Justice Kim Chang-soo