(영문) 서울고등법원 2016.08.12 2015노3183 | 리걸엔진

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(영문) 서울고등법원 2016.08.12 2015노3183

특정경제범죄가중처벌등에관한법률위반(사기)등

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The prosecutor's appeal is dismissed.

Reasons

Since misunderstanding of the legal principles on the summary of the grounds for appeal (related to the part not guilty) the part that the defendant acquired by the victim F with re-investment equivalent to the dividend proceeds by the victim F, which re-investments separate dividend proceeds other than the principal, it shall be deemed that the crime

Although the court below did not establish a separate crime of fraud since it did not infringe new legal interests solely on the ground that there was no realistic payment procedure with regard to the re-investment of the amount equivalent to the dividend profits.

The judgment is erroneous in the misapprehension of legal principles.

Sentencing of the lower court (one year and six months of imprisonment, and three years of suspended execution) is deemed to be too uneasy and unfair.

Judgment

As to the assertion of misunderstanding of legal principles, the Defendant, by deceiving the Victim F to pay dividends to be paid to the Victim F by deceiving the Victim F, obtained a total of 4,164,210 won by converting them into investments.

In the case of fraud involving deception of property-related legal principles, if there is a property provision by deception, it constitutes a crime of fraud itself by infringing on the victim's property, and thereby, the crime of fraud is established. Even if the victim makes a new investment in the existing loan principal without actually receiving funds for the purpose of evading the return of the property acquired by deception by deceiving the victim, it is nothing more than a means to conceal the crime of fraud against the existing investment funds or avoid the return of the fraud, and it does not constitute a crime of fraud as it does not infringe on new legal interests (see, e.g., Supreme Court Decision 2001Do1707, Jul. 13, 2001). The court below held that based on the above legal principles, the victim F's statement at the court below based on the above legal principles, i.e., the victim F's statement is not actually paid the amount to the defendant, but re-investment the dividend proceeds that the victim should receive from the defendant as the principal,

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