2017Do14113 Fraudulent

1. A;

2. B

Defendants

Law Firm Preamble (for all the defendants):

Attorney Haap-ju, Attorney Park Jong-hun, Justice Seo-hun, Justice Seo-hun, Counsel for the defendant-appellant

Daejeon District Court Decision 2016No1445 Decided August 23, 2017

January 31, 2019

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

The grounds of appeal are examined.

1. The summary of the facts charged in this case is as follows.

On December 3, 2012, at the office of Defendant B located in Seo-gu, Seocheon-gu, 2012, the Defendants and C falsely concluded that “Defendant B is working for the acquisition of the instant hospital.” At the time of acquisition, Defendant B entered the above hospital’s office and changed the amount of KRW 50 million to operate the hospital’s office,” and Defendant B entered into a contract with the victim as above on December 24, 2012, and Defendant C entered into a performance guarantee contract with the victim, and Defendant C received KRW 50 million from the victim’s account under its name. However, Defendant B did not enter into an underwriting contract with the medical corporation operation of the instant hospital, and there was no possibility that the above medical corporation would take over the claim from the Plaintiff on November 28, 2011, and Defendant B could not take over the above medical corporation’s office at around 000 if he had been aware of the fact that there was no possibility that the above medical corporation would take over the claim for reimbursement of KRW 200.

3. However, the above determination by the lower court is difficult to accept. In other words, considering the following circumstances, it is difficult to view that the fact of deceiving the victim was proven without reasonable doubt, as the Defendants knew that the possibility of not accepting the instant hospital was high, and could have taken over the instant hospital.

(1) According to the reasoning of the lower judgment, Defendant B entered into an agreement on the transfer of claims for the return of the acquisition price of G around November 28, 201 with G to which Defendant B received the above medical corporation from K, etc., and invested in the method of lending the acquisition price of the hospital to G on or around January 15, 2009. While G did not pay a balance of the acquisition price of approximately KRW 1 billion, G received from K on or around January 24, 2009, G was in the position of K as the head of the planning office and managed and operated the hospital, and Defendant B was in the position of the head of the planning office. Defendant B entered into an agreement on the transfer of claims for the return of the acquisition price of G around November 28, 201 with G to which Defendant B received the above medical corporation, and Defendant B entered the same content as the above facts charged with the victim as the performance bond around December 24, 2012. Comprehensively taking account of each of the above facts, each of the above facts was prepared and executed to the victim.

(2) According to the reasoning of the lower judgment and the record, Defendant B’s written contract prepared by the victim and the records reveal the following: (a) if Defendant B fails to take over a hospital by April 15, 2013, the fact that Defendant B stated that the amount of the deposit received from the victim plus the statutory interest shall be refunded; and (b) the victim testified to the effect that “the Defendant did not speak that the Plaintiff would have received 10% of the deposit at the time of the preparation of the said contract” by the first instance court. In full view of each of the above facts, the Defendants and the victim had already known that there was the possibility that the above hospital will not take over the hospital by itself.

(3) In addition, according to the reasoning of the lower judgment, G brought a lawsuit against K, etc. on August 10, 2012 for the claim for the refund of the purchase price in relation to the receipt of the above medical corporation, and Defendant B’s lawsuit was pending at the time when the contract was prepared by the victim. Meanwhile, according to the records, G testified with G to the purport that “K, who had no means to return the price already received in connection with the receipt of the hospital, anticipated to transfer the hospital to G, and who did not have any means to return the price already received in connection with the receipt of the hospital,” and the fact that the first instance judgment was not sentenced in the above legal proceedings at the time of the preparation of the contract is unknown. Comprehensively considering the above facts, it is difficult to conclude that the fact that the above lawsuit was pending at the time of the preparation of the contract was in the situation where the hospital acquisition was no longer or Defendant B

4. Therefore, the lower court should have determined whether a crime of fraud was established after further examining whether there was a circumstance to prove the fact of deceiving the victim, as if the Defendants were aware that there is a high possibility that the Defendants would not take over the hospital. Nevertheless, the lower court erred by misapprehending the legal doctrine on fraud and failing to exhaust all necessary deliberations, solely on the grounds stated in its reasoning.

5. 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

Chief Justice Cho Jae-hee

Justices Kim Jae-in

Justices Lee Jae-hwan