[1] The meaning of deception by omission as a requirement for fraud, and the case where a seller receives money from a buyer in excess of the amount that the buyer has to pay by mistake when the seller receives from the buyer the balance of purchase and sale, constitutes a crime of fraud by omission

[2] The case reversing the judgment of the court below on the ground that there is no evidence to acknowledge that the seller received the payment even though the buyer knew that the buyer would deliver a cashier's check by mistake at the time of receipt of the sale balance

[1] The deception as a requirement for fraud refers to all active and passive acts that discharge the fiduciary duty in good faith and sincerity in property transaction. The deception as a passive act refers to a person subject to duty of disclosure does not inform the other party of the fact with knowledge that the other party was absent from a mistake. If it is evident that the other party would not have been aware of the fact in light of the ordinary transaction experience, it shall be legally obligated to notify the facts in light of the principle of good faith. If the other party would have known of the fact in light of the ordinary transaction experience, if the other party would not do so, the other party would have been aware of the fact, and if the other party would not have been aware of the fact in advance, it is obvious in light of the empirical rule that the other party would not have actually delivered money in excess of the amount that the other party would have to pay the balance to the seller. Thus, if the other party becomes aware of the fact prior to or after the purchase and sale of the balance, the other party would not have been aware of the fact that the buyer would have been aware of the excess amount of his/her fiduciary duty, barring special circumstances.

[2] The case reversing the judgment of the court below on the ground that there is no evidence to acknowledge that the buyer received the payment even though he knew that the buyer would deliver a cashier's check by mistake at the time of receipt of the sale balance

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

[1] Supreme Court Decision 86Do1912 delivered on October 13, 1987 (Gong1987, 1739), Supreme Court Decision 95Do707 delivered on September 15, 1995 (Gong1995Ha, 347), Supreme Court Decision 95Do2828 delivered on February 27, 1996 (Gong1996Sang, 1183), Supreme Court Decision 96Do1081 delivered on July 30, 1996 (Gong196Ha, 2756), Supreme Court Decision 98Do231 delivered on April 14, 1998 (Gong198Sang, 14239), Supreme Court Decision 97Do3989 delivered on April 24, 1998 (Gong1998Sang, 1959, 297Do196989 delivered on September 24, 1998).

Defendant

Defendant

Law Firm National Law Office, Attorney Choi Gyeong-tae

Seoul District Court Decision 2002No10304 Delivered on July 22, 2003

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

1. The deception as a requirement for fraud refers to all affirmative or passive acts that discharge the duty of trust and good faith in property transaction, apart from the widely accepted transactional relationship. The deception by omission refers to a person subject to duty of disclosure who is aware that there is an error or omission in a certain fact by the other party. If it is evident that the other party would not have been aware of such fact in light of the ordinary transaction experience, the legal obligation to notify the fact is recognized in light of the good faith principle (see Supreme Court Decision 99Do2884 delivered on January 28, 2000). If the victim delivers money exceeding the amount to be paid due to mistake in paying the remaining purchase and sale amount to the defendant, it is clear in light of the empirical rule that the victim would not have been given such excess amount. Thus, if the defendant becomes aware of the fact before or after receiving the remaining purchase and sale amount, the defendant should be notified to the victim that he would have been aware of the fact that he would have to be aware of the fact that he would have been aware of such excess amount of obligation, and thus, the victim would not be aware of such excess amount of obligation.

2. In full view of his adopted evidence, the court below acknowledged the following facts: (a) on July 17, 2001, the Defendant, on behalf of the buyer on behalf of the buyer, concluded a sales contract of KRW 88,269,000 with respect to KRW 1707,50,00,000 with respect to KRW 1702,00,000, Gwanak-gu, Seoul Special Metropolitan City as the buyer on behalf of the buyer on July 17, 2001; and (b) paid KRW 10,000,000 as the down payment; (c) on the ground that the Defendant received the remainder payment from the victim on KRW 78,269,00,000 and KRW 50,000,000,000,000 cashier’s checks issued 1,1979,497,4979,497,979,97,9716,297, etc.

Furthermore, the court below found the victim's 10,000 won of the above 50 million won and 10,000 won of the cashier's checks to be issued to the defendant under the name of 3 cashier's checks in addition to the above 100,000 won and 10,000 won of the above 3 cashier's checks, and found the victim's 20,000 won of the cashier's checks to be issued to the defendant under the name of 10,000 won of the above 207, 201 and 30,000 won of the above cashier's checks to be issued to the defendant. On the other hand, the court below found that the victim's 10,000 won of the above 10,00 won of the above 60,000 won of the cashier's checks to be issued to the defendant under the name of 30,000 won of the above 6,000 won of the 6,0000,000 won of the cashier's.

3. We affirm the part of the court below's fact-finding that the defendant was issued with an attachment of a cashier's checks of KRW 10 million, in error, compared with the evidence in the records.

However, it is not acceptable that the court below concluded that the defendant received the balance of this case with knowledge of the fact that the victim knew that he will deliver a cashier's checks of KRW 10 million in error at the time when the defendant received the balance of this case.

Although the circumstances cited by the court below may be the grounds for recognizing that the victim delivered the cash to the defendant with a bill of KRW 10 million added to the cashier's check, the circumstance alone alone is that the victim knew, or was aware, of the fact that the victim was issued with a bill of KRW 10 million prior to or upon receipt of the victim's remainder payment, and it cannot be deemed that the victim knew, or was aware, of the fact that the victim was issued with a bill of KRW 10 million together with a bill of KRW 1,000,000, and there is no other evidence to acknowledge it in the record.

Nevertheless, the court below erred by failing to exhaust all necessary deliberations to conclude that the defendant was issued with the knowledge of the fact that the victim was issued 10 million won cashier's checks, or by misapprehending the rules of evidence or by misapprehending the legal principles on the crime of fraud and the crime of embezzlement of stolen property by omission, which affected the conclusion of the judgment. The argument in the grounds of appeal to the same purport is justified.

4. Therefore, without further proceeding to decide on the remaining grounds of appeal, the judgment of the court below shall be reversed, and the case shall be remanded to the court below for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices.

Justices Lee Hong-hoon (Presiding Justice)