beta
Text
The judgment of the court below is reversed.
Defendant
A Imprisonment of three years and six months, and Defendant B shall be punished by imprisonment of two years, respectively.
Reasons
1. Summary of grounds for appeal;
A. Defendant A (i) Omisunderstanding of facts has returned to investors a total of 1.2 billion won, and the investors have already received full refund of the investment amount. As such, the returned amount out of the investment amount should be excluded from the amount of defraudation.
B. In light of the fact that Defendant A did not have any history of criminal punishment on the grounds that he did not have any history of criminal punishment on the grounds that he was wrong, and that Defendant A was aware of and reflects his wrong, Defendant A attempted to realize profits by dealing with research on the operation of financial products before the end, and that Defendant A did not have any significant profits acquired individually, the lower court’s imprisonment (four years of imprisonment) with labor for Defendant A is too unreasonable.
B. In light of the fact that Defendant B (unfair form of punishment) suffered in the trial of the first instance, Defendant B’s mistake and reflects his fault, Defendant B takes charge of only the role of Defendant A’s performance cost, Defendant B did not have any victim invested, the profits acquired are merely the level of KRW 17 million, the amount acquired by Defendant B did not have to be caused by personal drinking value, and Defendant B made efforts to compensate the victims for damages, etc., the lower court’s punishment (two years and six months of imprisonment) against Defendant B is too unreasonable.
2. Determination
A. Fraud as to the assertion of mistake of facts is established when a person deceivings a person, thereby acquiring property or property benefits from another person, and subsequently repaying the property or property benefits already acquired.
Even if this does not affect the establishment of a crime, even if it is true that all or part of the payments have been made to the victims after the acquisition of money, the total amount received from the victims shall be considered to be the amount of fraud, the essence of fraud is to acquire property or property gains by deception, and it is real property of the other party.