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The judgment below is reversed, and the case is remanded to the Seoul High Court.
In the name of the case of the judgment below.
Reasons
The grounds of appeal by the defendant are examined ex officio prior to judgment.
1. In fraud, the act of disposal is an intermediate arrangement of the final outcome of the actor’s mistake by deception and the acquisition of property or profits from property by the actor, while the intrinsic characteristic of the acquisition of property by using the act of the victim, which is the intrinsic characteristic of the act of the victim, is not the act of the victim, but the act of larceny in which the actor acquires property by means of seizure is divided.
In consideration of these roles and functions of the disposal act, the actor acquired property or property benefits through any act based on the intention of the person who was committed.
In cases where it can be assessed, a disposal act as stated in fraud is recognized (see Supreme Court Decision 2016Do13362, Feb. 16, 2017). In addition, in fraud with respect to one property, a disposal act is deemed to mean a disposal act to transfer the actual control over the property to a criminal due to an error by the perpetrator’s deception, and thus, there was an act constituting a delivery of property in appearance.
Even if the property is not in a state where it is possible to dispose of it because it is under the de facto control of the offender, and if it is judged that it is still under the control of the victim, there was a disposal act on the property.
Nor can we see (see Supreme Court Decision 2001Do1825 delivered on May 16, 2003). 2. Review of the reasoning and records of the lower judgment reveals the following circumstances.
A. BH, E, B, etc. final by the request of the victim of the gold-trade trade at the same time as indicated in the facts charged, which is in charge of soliciting Japanese transportation volume of the gold-price, shall be solicited to deduct the victim's gold bars from the next time, and the victim's gold bars shall be collected from the victim by pretending to transport excessive victims' gold bars, and such gold bars shall be collected from the victim's leader according to their instructions.