[1] Criteria for determining the intent of the defraudation in fraud

[2] In a case where a person borrowed money from another person and received money from another person by notifying the fact contrary to the truth as to the purpose of use or the method of raising the repayment fund, whether fraud is established (affirmative)

[3] The case holding that even if a self-guaranteed guarantor stand a joint and several surety, a borrowing fraud is established

[1] Article 347 of the Criminal Code / [2] Article 347 of the Criminal Code / [3] Article 347 of the Criminal Code

[1] Supreme Court Decision 95Do424 decided Apr. 25, 1995 (Gong1995Sang, 2014) Supreme Court Decision 2004Do8651 decided Mar. 24, 2005 (Gong2005Sang, 693)

Defendant 1 and two others

Defendant 1, 2, and Prosecutor (Defendant 1, 3)

Attorney Choi Jin-han

Jeonju District Court Decision 2002No325 delivered on August 21, 2003

1. Of the judgment of the court below, the part concerning the remaining crimes except for the frauds against Defendant 1’s non-indicted 1 and the part concerning Defendant 2 and Defendant 3 are reversed, and this part of the case is remanded to the Jeonju District Court Panel Division. 2. The remainder of the prosecutor’s appeal is dismissed.

1. Defendant 1's fraud on January 26, 1998, and Defendant 1 and 3-

As to the fraud of September 14, 1998

A. Summary of this part of the facts charged

① At around 14:00 on January 26, 1998, Defendant 1 borrowed money from 30,000 won to 30,000 won on the 4th anniversary of the above 14:0,000 won, and the fact that the above 4:0 won was owned by the above 1,00 won to 30,00 won, but the management of the commercial building was not proper due to the failure of the 1,000 won to receive management expenses, and even if the 1,00 won was borrowed from the victim non-indicted 2, he did not have the intent or ability to repay the money later than 3 months, and even if the funds borrowed from the victim were used for his own personal purpose, the above 30,000 won was not overdue, so he did not pay the above 1,000 won to the victim, and the 1,000 won was deducted from the above 1,000 won to 30,000 won.

B. The judgment of the court below on this part of the facts charged

According to the reasoning of the judgment below, while judging the facts charged against Defendant 1, it is difficult for the court of first instance to determine that there were some statements of Defendant 1 and the victim Nonindicted 2 as evidence that correspond to this part of the facts charged, but the above statements of Defendant 1 are the fact that he borrowed the above money from Nonindicted 2, and it does not purport to recognize the criminal intent of defraudation. In full view of the statements of Defendant 3 and Nonindicted 3, the original copy of the real estate register, and the authentic copy of the notarial deed, it was difficult for the above Nonindicted 3 to jointly and severally liable for Defendant 3 while borrowing the above money from the victim, and it was difficult for the above Nonindicted 2 to recognize that the above 3 did not have any other evidence to recognize that the victim acquired the above money from Defendant 1, 3, and 3 as joint and several surety at the time of the above request for a loan lawsuit against Defendant 1, 200,000 won of the above 30,000 won of the above 30,000 won of the above 2.

C. Judgment of the Supreme Court

However, the above part of the judgment below is hard to accept for the following reasons.

The intent of defraudation, which is the constituent element of fraud, is to be determined by taking into account the objective circumstances such as the defendant's financial power, environment, details of the crime, and the process of transaction before and after the crime unless the defendant makes a confession (see Supreme Court Decision 95Do424, Apr. 25, 1995). In a case where, in borrowing money from another person, the other party has notified the other party of the fact that the purpose of the borrowed money or the method of raising funds to be repaid would not have complied with if he/she had actually notified the other party of the fact that it would go against the truth, the crime of fraud is established, and in this case, the conclusion is not different solely on the ground that the security for the borrowed money was provided.

(1) Examining the evidence duly adopted and examined by the first instance court as to Defendant 1’s fraud on January 26, 1998 in light of the records, the Defendant appears to have no ability to repay money more than three months even if he did not receive monthly wage as the complaint of the above shopping district management office on January 26, 1998 and did not have any specific property. The use of the above money that the Defendant intended to borrow was not for paying the electricity fee of the commercial district, but for personal use. Nevertheless, the Defendant borrowed money to the victim Nonindicted 2 for the purpose of paying the electricity fee of the commercial district, and then borrowed money KRW 8,80,000,000,000,000,000,000,0000 won after the receipt of the management fee of the commercial district. Even if the Defendant did not pay the above borrowed money to the victim, it is difficult to view that the Defendant had been unaware of the victim’s intent to use the money or to use the money after the loan.

Nevertheless, the judgment of the court below, which judged that the defendant does not have the intention to commit the crime of defraudation of this part of the facts charged, has committed a mistake that affects the conclusion of the judgment by misunderstanding the legal principles on the criminal intent of defraudation, and by misunderstanding the facts against the rules of evidence.

(2) Furthermore, considering the records of the evidence duly admitted and examined by the first instance court as to the above fraud on September 14, 1998, Defendant 1 and 3 did not repay the above money borrowed from the victim non-indicted 2, while Defendant 1 and 3 did not lend 20 million won to the victim non-indicted 2, they would receive 50 million won and pay 30 million won until October 31, 1998 with the above money borrowed from the above non-indicted 1 and the above money borrowed from the above non-indicted 3, which would have no effect on the above money borrowed from the above non-indicted 1 to the non-indicted 3, and there was no possibility that the above money borrowed from the above non-indicted 1 to the non-indicted 3's money borrowed from the above non-indicted 1 to the non-indicted 3's money borrowed from the above defendant 1 to the above non-indicted 3's money borrowed from the above defendant 1 to the above non-indicted 3's money borrowed from the above land.

Nevertheless, the judgment of the court below, which judged that there is no intention to commit the crime of defraudation by Defendant 1 and Defendant 3 against this part of the facts charged, has been erroneous that affected the conclusion of the judgment by misunderstanding the legal principles as to the criminal intent of defraudation and misunderstanding facts in violation of the rules of evidence.

2. As to the remaining criminal facts of Defendant 1

A. Judgment on the grounds of appeal by the prosecutor

According to the reasoning of the judgment below, among the facts charged in this case, the court below acquitted Defendant 1 of this part of the charges with the purport that it was insufficient to recognize this part of the charges, and there was no other proof of evidence, and acquitted Defendant 1 of this part of the charges in this case, on September 15, 1998, on the ground that Defendant 1 gave false testimony from Nonindicted 3 to the effect that the above testimony was not made contrary to Defendant 1’s memory because the victim Nonindicted 1 did not directly give money to Defendant 1 and 2 did not give money to Defendant 1 through Defendant 2, but he did not give it to Defendant 1. The court below acquitted Defendant 1 of this part of the charges with the purport that there was no other evidence. The court below rejected Defendant 1 of the charges in this case’s appearance as a witness in the civil litigation and that Defendant 2 took the signature and seal of the copy of each of the above statements from Nonindicted 3 on September 15, 1998.

B. Judgment on Defendant 1’s grounds of appeal

According to the reasoning of the judgment of the court below, among the facts charged in this case, the court below found the defendant 1 guilty on the ground that the defendant 1 again affixed the seal of himself and the defendant 3 on the copy of the letter prepared by him, and that the defendant 2, who was the defendant defendant 2, made a false accusation that he forged and exercised each of the above seals, and that the defendant 1 appeared as a witness at a civil procedure on September 14, 1998, and testified that he again did not affix the seal of the defendant 1 and the defendant 3 again on September 14, 1998. The court below found the defendant 1 guilty on the ground that the copy of each of the above facts charged in this case had affixed the seal of the defendant 1 and the defendant 3. In light of the records, the above measures of the court below are just, and there is no error of law such as misconception of facts in violation of the rules of evidence without deliberation as otherwise alleged in the grounds of appeal (However, the court below erred in the misapprehension of the above part of the evidence and the facts charged.

3. On the criminal facts of Defendant 2

A. Examining the reasoning of the judgment below in light of the records, the court below's determination that Defendant 2's charge of fraud can be recognized in the judgment of May 10, 1998 after compiling the adopted evidence is just and acceptable, and there is no violation of law such as misconception of facts against the rules of evidence without conducting a hearing as otherwise alleged in the ground of appeal.

B. However, on September 2, 199, Defendant 2 was sentenced to a suspended sentence of two years for a crime of fraud at the Jeonju District Court on September 2, 199, and the judgment became final and conclusive, and the crime of fraud in this case was deemed to be concurrent crimes under the latter part of Article 37 of the Criminal Act and sentenced a fine of one million won for the crime of fraud in this case under Article 39(1) of the Criminal Act.

However, when there is a crime which was revised by Act No. 7623 of July 29, 2005, which was subsequent to the decision of the court below, and was not adjudicated among concurrent crimes, Article 39 (1) of the Criminal Act, Article 39 (1) of the Criminal Act shall be sentenced to punishment in consideration of equity and the case where the crime for which the judgment became final and conclusive is adjudicated at the same time. In this case, the punishment may be mitigated or exempted, and the application of the previous provisions in the Addenda shall be applied to the crime committed before the enforcement of the amended Act in principle except for the case where the former provisions are favorable to the actors. Thus, in this case where the application of the previous provisions is not favorable, the amended Act is applied to the crime of fraud of this case which was committed before the final judgment of the previous punishment, and therefore, this part of the judgment of the court below cannot be maintained as it is.

4. Conclusion

Therefore, among the judgment of the court below, the part on Defendant 1’s fraud as of January 26, 1998 and the part on Defendant 3 and 2’s fraud as of September 14, 1998 should be reversed. Defendant 1’s guilty part on the charges of false accusation and perjury should be reversed since one punishment should be imposed at the same time in the concurrent crimes between each reversed crime and the former part of Article 37 of the Criminal Act, even though Defendant 1’s assertion on that part is not well-grounded. Meanwhile, even if Defendant 1’s assertion on the grounds of appeal as to that part is without merit, the part on Defendant 1’s acquittal of perjury is related to the guilty part of the reversed perjury, and thus, it should be reversed together. The part on Defendant 1’s above crime and the part on Defendant 3 and 2 are reversed, and remanded to the court below for a new trial and determination, and the remainder of the prosecutor’s appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Shin Shin-chul (Presiding Justice)