(영문) 서울남부지방법원 2018.03.30 2017노1642

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(영문) 서울남부지방법원 2018.03.30 2017노1642

사기

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The judgment of the court below is reversed.

A defendant shall be punished by imprisonment for four years.

Reasons

1. Summary of grounds for appeal;

A. In relation to misunderstanding of facts, misunderstanding of legal principles (2017 senior order 618) 1), 8 days guidance, the Defendant, as a leading shareholder, failed to pay an advance payment to the victim P who was designated due to the failure to collect all the last advance payment from the fraternity members, and thus, it cannot be deemed as a breach of trust.

2) The victim P was awarded a successful bid from the 8th day to the 29th day, and agreed with the Defendant and agreed with the Defendant, and accordingly, the Defendant was paid monthly interest at KRW 3.5 million, which should be paid by the successful bidder. Accordingly, the Defendant’s monetary consumption lending contract with the Defendant and the victim P should be deemed to have been concluded, and the Defendant’s failure to change the contract is merely a mere non-performance of obligation, and thus, it cannot be viewed as a crime of breach of trust.

B. The punishment sentenced by the lower court (six years of imprisonment) is too unreasonable.

2. Determination

A. 1) As to the assertion of mistake of facts and misapprehension of legal principles, if the person who was the successful bidder for the first argument intends to constitute “other person’s business” as referred to in the crime of breach of trust under an agreement with the members, the principal contents of the relationship should go beyond a simple obligation under the relationship of claims and be in the protection or management of another person’s property based on the relationship of trust. Thus, if the transferor collects the advance payment from the members of the fraternity, the advance payment has the nature of the amount entrusted to the state of the fraternity in order to substantially prohibit the successful bidder from paying the advance payment, and therefore, the advance payment constitutes another person’s business as referred to in the crime of breach of trust.

However, if the fraternity did not collect the money from the members of the fraternity, then the fraternity did not collect the money.

유사 판례

-대전지방법원 2016.06.16 2015고단3648

-서울북부지방법원 2016.02.18 2014고정370

-대법원 2009. 8. 20. 선고 2009도3143 판결

-울산지방법원 2017.02.10 2016노2092

-춘천지방법원 2018.06.28 2017노314