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The judgment below
The guilty part shall be reversed.
Defendants shall be punished by imprisonment for one year.
except that this judgment.
Reasons
1. Summary of grounds for appeal;
A. On December 29, 2016, at the time of the instant crime, the Defendants had the intent and ability to pay the construction cost to the victims on or around December 29, 2016, which was at the time of the instant crime, and the failure to pay the construction cost thereafter constitutes a non-performance under the civil law, and the judgment of the court below that there was a criminal intent by deceit to the Defendants, even though it cannot be viewed as a fraud, is erroneous in the misapprehension
The punishment of the court below (one year of imprisonment) is too unreasonable.
B. According to the public prosecutor's statement (in fact-finding, unreasonable sentencing), victims, G, and K's statement, the Defendants only intended to use the loan as a successful bid price, and agreed to pay the construction price on the condition that they waive their lien to the victims even though they did not have the intent and ability to pay the construction price. The Defendant A signed and sealed the agreement on the payment of lien price, thereby recognizing the scope of the Defendants' defraudation.
Nevertheless, the judgment of the court below which acquitted the Defendants of the fraud of May 24, 2016 is erroneous in misconception of facts.
The sentence of the court below is too unhued so as to be unfair.
2. On December 29, 2016, an ex officio determination prosecutor filed an application for changes to a bill of amendment to the indictment stating that “a total of KRW 241,80,000,000 was acquired from property gains equivalent to the amount of the claim preserved by the above provisional seizure,” among the facts charged as to the fraud committed by the Defendant on December 29, 2016. The judgment of the court below was no longer maintained since the subject of adjudication was changed by this court’s permission.
However, even if there are such reasons for ex officio destruction, both parties' assertion of misunderstanding of facts or misunderstanding of legal principles is still subject to determination.
3. In addition to the facts stated in the judgment of the court below on the prosecutor's assertion of mistake of facts, the court below is legitimate.