2018Do2464 Fraudulent

A

Defendant

Attorney B

Daegu District Court Decision 2017No4782 Decided January 19, 2018

April 24, 2018

The judgment below is reversed, and the case is remanded to the Daegu District Court Panel Division.

The grounds of appeal are examined.

1. The summary of each of the facts charged in this case is the defendant who operates DI (hereinafter referred to as "D").

The victims have difficulties in economic circumstances, such as the amount of the company's liabilities up to nine billion won, etc.

, even if the goods are supplied, the victims have no intent or ability to pay the price therefor.

on March 18, 2016, the sum of market prices from the victim F on March 18, 2016

Two tables equivalent to KRW 6,00,000 are supplied, and 15 times from January 22, 2016 to April 18, 2016

The victim I was supplied with steel materials equivalent to 292,010,377 won in total in the market value.

(c)

2. The lower court: (a) when the Defendant’s supply of steel from an existing customer was discontinued, the Defendant’s victim I.

The Defendant appears to have been supplied with steel materials, and D’s debt amount was approximately KRW 9 billion around January 2016, and the Defendant was the Defendant.

Since April 2016, 2016, D has not been paid employee wages, and D has defaulted on June 2016.

The defendant had already been in an economic situation at the time of being supplied with the goods by the victims.

and if the victims have known such circumstances, they will not supply the goods to the defendant.

In light of the fact that the defendant had the intention to obtain fraud for reasons such as the fact that the defendant would not have been seen, the above provision

Each of the charges was found guilty.

3. However, it is difficult to accept the above determination by the lower court.

(1) The manager of the company, after trading in the course of the business, shall be liable for the debt.

In the event of failure to perform the obligation, the manager has suffered business difficulties at the time of the transaction and fails to pay the obligation.

It seems that there is a willful negligence in fraud immediately just because it was predicted that the fraud may not be committed.

The same applies to the determination of the establishment of a crime by the outcome of the occurrence.

Even if the manager knows the possibility of default, it is highly probable to avoid it.

with belief that the contract has been performed in good faith, and that the contract has been performed in good faith.

In the event of fraud, it cannot be readily concluded that there was an intention to acquire fraud by a manager (Supreme Court Decision 2001, 3.).

27. Supreme Court Decision 2001Do202 Decided June 11, 2015 (see Supreme Court Decision 2015Do1809 Decided June 11, 2015)

(2) The record reveals the following circumstances.

1. D, operated by the defendant, is a company whose business objective is the steel plate processing, etc., and the defendant

Of goods supplied by persons, ton tables are machinery necessary for steel plates adjoining, etc., and steel materials are steel plates.

As raw materials for processing, they are related to the performance of D's business.

② D’s assets as of the end of 2015 KRW 10.4 billion, sales amounting to approximately KRW 14.6 billion in 2013,

approximately 13 billion won in 2014, approximately 12.3 billion in 2015, and the price of the goods supplied by the defendant

D’s total amount of KRW 300 million, compared to D’s assets or sales, the amount is objectively paid.

It is difficult to see that it is the maximum amount difficult to repay, and in particular, 6 million won in total for the internship;

(1) The Act is nothing more than the Act.

(3) A criminal investigation report supporting the fact that the defendant processed and sold steel materials supplied to him/her.

The documents related to this section are submitted, and the defendant has already satisfied his obligations and employees with respect to the sales of steel products.

A statement made by an investigative agency to the effect that the defendant was used for the payment of wages; and

There is no material to regard that steel materials or sales proceeds were used for other purposes. In addition, the Defendant used steel.

On March 30, 2016, when the steel products were supplied, paid approximately KRW 2,565,00 among the steel products.

C. In light of such circumstances, the Defendant processed and sold steel products supplied and sold the company’s light.

It seems that efforts have been made to normalize the Decree.

(4) A creditor of D at the time the defendant was supplied with goods from the victims shall stand for the D property.

or provisional seizure, or D's failure to pay for a bill or check, or D's failure to pay for a transaction is subject to a disposition of suspension.

There is no objective data to view that D's normal operation of the company was difficult, such as the concern.

5. D's financial situation or avoid in the course of receiving goods from the victims.

There is no evidence to support the fact that they actively enticed victims with respect to their ability to repay.

(c)

(3) Comprehensively taking account of such circumstances, the evidence alone presented by the court below or the prosecutor is sufficient.

It is true that at the time of being supplied with goods by the victims the defendant had the intention to obtain the goods by deception;

It is difficult to view that there is no room for doubt to be proven.

(4) Nevertheless, the lower court’s intentional acquisition of the Defendant solely based on the circumstances indicated in its reasoning.

The lower court determined that such judgment violated logical and empirical rules, thereby free capital increase.

In other words, it is erroneous by exceeding the limit of the fraud, or by misapprehending the legal principles on the intent of fraud.

4. Conclusion

Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion.

It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Min Il-young

Justices Kim Jae-tae

Chief Justice Cho Jae-hee

Justices Kim Jae-in