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The judgment below
The guilty part shall be reversed.
Defendants shall be punished by imprisonment for not less than two years and six months.
Reasons
1. Summary of grounds for appeal;
A. As to the mistake of facts or misapprehension of legal principles, the Defendants (the Defendants) had the intent and ability to complete the registration of ownership transfer with respect to the pertinent unit of sale in lots at the time of concluding the rules on the sale in lots and the development cost with 88 victims as indicated in the judgment of the court below. Moreover, it is difficult to view the contents of the advertisement in the judgment of the court below as the deception of fraud, and therefore there was no intention to acquire the Defendants. (2) As to the embezzlement, Defendant B (Defendant B) paid KRW 50,528,370 as stated in the judgment of the court below in consideration of the performance of the business loan counseling and joint and several sureties, while managing the funds of L Co., Ltd. (hereinafter “L”), while managing the funds of L Co. (hereinafter “L”), Defendant B paid KRW 50,5
B. The sentencing of each of the Defendants of the lower court (two years and six months of imprisonment) is too unreasonable.
2. Prior to the judgment on the grounds for appeal by the Defendants ex officio, the Prosecutor applied for permission to amend an indictment to change the facts charged as to the fraud against the Defendants at the time of the trial, and the subject of the judgment by this court was changed by permission. As such, the fraud in the judgment of the court below was no longer maintained.
On the other hand, the fraud against Defendant B and the crime of occupational embezzlement as stated in the judgment of the court below are concurrent crimes under the former part of Article 37 of the Criminal Act, and one sentence should be sentenced pursuant to Article 38(1) of the Criminal Act. Thus, the judgment of the court below cannot be reversed in its entirety.
However, the defendants' assertion of misunderstanding of facts or misunderstanding of legal principles is still subject to the judgment of this court, and this is examined.
3. Judgment on misconception of facts or misapprehension of legal principles
A. The point of fraud.