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서울서부지방법원 2018.02.08 2017노1477

The defendant's appeal is dismissed.


1. Summary of grounds for appeal;

A. In fact, the Defendant is unable to return the investment amount to the victim E (hereinafter “victim”) due to the following reasons, such as that China’s sand gathering project is difficult, and approximately KRW 2 million of the sand production deposit ( approximately KRW 360,000,000) is not returned from K in the land owner, and there was no intention to commit the crime of defraudation at the time of receiving KRW 100,000 from the victim via C.

B. The sentence of the lower court that is unfair in sentencing (eight months of imprisonment) is too unreasonable.

2. Determination

A. (1) The determination of the assertion of mistake of facts is based on the following circumstances: (a) insofar as the defendant does not make a confession, the criminal intent of defraudation, which is a subjective constituent element of fraud, has to be made by taking into account the objective circumstances such as the defendant's financial history, environment, details of the crime, and the process of performing transactions before and after the crime; (b) dolusent intention is also established for fraud (see Supreme Court Decisions 2007Do881, Jan. 18, 2008; 2008Do443, Mar. 27, 2008; 2008Do443, Jun. 27, 2008; (c) the court below duly adopted and investigated by the evidence, i.e.,,, the defendant established the above apartment collection project under the name of the victim of the above 100 million won investment project in China, and the defendant started to implement the apartment collection project under the name of the victim of the above 100 billion won investment project.