[1] The role and function of a dispositive act in fraud / Whether a dispositive act in fraud is recognized in a case where the actor, etc. can be deemed to have acquired property or property gains through any act based on the intent of the defrauded (affirmative)

[2] Meaning of “disposition” in fraud as to property / [the act of disposal] / In a case where, although there was an act falling under the provision of a property by appearance, in a case where the property is deemed as still under the control of the victim, not under the actual control of the offender, and where the property is deemed as still under the control of the victim (negative)

[1] Article 347 of the Criminal Code / [2] Article 347 of the Criminal Code

[1] Supreme Court en banc Decision 2016Do13362 Decided February 16, 2017 (Gong2017Sang, 673) / [2] Supreme Court Decision 2001Do1825 Decided May 16, 2003 (Gong2003Sang, 1413)

Defendant

Defendant

Seoul High Court Decision 2017No3194, 2018No394 decided April 20, 2018

The judgment of the court below is reversed and the case is remanded to the Seoul High Court. Of the case name of the court below, the "Violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Fraud)" shall be corrected to "Violation of the Aggravated Punishment, etc. of Specific Economic Crimes (Fraud)"

We examine the defendant's grounds of appeal ex officio prior to judgment.

1. In fraud, a dispositive act in fraud means mediating and connecting the last outcome of the mistake on the part of the defrauded by deception of the actor and the acquisition of property or pecuniary advantage by the actor, while the intrinsic characteristic of the acquisition of property by means of the act of the victim, which is the intrinsic characteristic of the acquisition of property by means of the act of the victim, is to distinguish the acquisition of property by means of confiscation, not by the act of the victim. In view of the role and function of the dispositive act, in a case where it is possible to deem that the actor, etc. acquired property or pecuniary advantage by means of a certain act based on the intent of the defrauded, then the dispositive act in fraud is recognized (see Supreme Court en banc Decision 2016Do1362, Feb. 16, 201). In addition, in a case of fraud as to property, it means that the victim transfers de facto control over property by mistake to the criminal. Even if there was an act falling under the delivery of property by appearance, if it is still possible to freely dispose of the property by the victim, it can not be deemed as follows.

2. Review of the reasoning of the lower judgment and the record reveals the following circumstances.

A. Co-defendant 7 of the lower court, Co-defendant 5 of the lower court, Co-defendant 1 of the lower court, etc., who was finally in charge of soliciting Japanese transportation volume of gold bullion upon the request of the victim as indicated in the facts charged, conspired with the victim to take the gold bars back, and conspired with the victim to take the gold ings from the victim by pretending to transport the gold ings of the victim, and then to take the gold ings back from the victim according to the victim’s instructions. As above, the two secondary transportation measures to transport the gold ings of the victim to Japan were separately recruited.

B. On March 2, 2017, the date of golding transport, the victim had Nonindicted 1 and Nonindicted 2, a supervisor and a guide employed by himself at the Incheon Airport port, 2017, which were the date of the said transport, order Nonindicted 1 and Nonindicted 2 to injure the body of the aircraft in the post-cuba, and divided the transport 29 gold bars in the post-cuba zone, and made them off in the boom, and supervised them by accompanying some transport measures to the process of moving to the aircraft in the post-cuba zone.

C. In addition, the victim sent the photographs of the transport books to the person to whom the gold bars waiting in the post-cuba, and let them wait before the arrival time of the transport books, thereby preventing the transport books from leaving the way different from that of the victim’s intent.

D. However, in accordance with co-defendant 1’s instructions, the transportation volume, after receiving gold from the victim from the victim in the Incheon Airport Tax Exemption Zone, or after boarding the aircraft in the Macuaca, the victim made a false statement that the toilet would be urgent for the victim, entered the victim’s room, and delivered gold bars to the second transport volume of the victim’s snow, and acted as if it still was done in the toilet.

3. Examining these circumstances in light of the legal principles as seen earlier, it is difficult to view that the transportation means were managed or supervised by the victim, and that there was no possibility that they would deviate from the fixed route, and that the transportation means have acquired de facto control over the price due to the victim’s act of delivery of the price. Rather, during the above movement process, until the carrier delivers the victim’s eye to the second transport volume, the abduction was still under the control of the victim, and the possession or de facto control was transferred to the criminal by the delivery of the price to the second transport volume. Ultimately, the transportation means that the carrier received the price from the victim cannot be deemed to have acquired the victim’s property on the basis of the criminal’s intent to acquire the victim’s money.

4. Nevertheless, the court below held that the transportation volume and accomplice's act constitute a crime of fraud on the ground that the Defendant committed a crime of aiding and abetting a violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Fraud) on the following grounds: (a) the Defendant: (b) the Defendant kept the gold bars by wearing five to six gold bars; and (c) the Defendant was intended to transport gold bars to each other; and (d) the Defendant: (a) the Defendant issued the gold so as to deliver it to the first transport volume; and (b) the Defendant was aware of the Defendant's disposal; and (c) the Defendant committed a crime of aiding and abetting a violation of the Aggravated Punishment, etc. of Specific Economic Crimes Act (Fraud).

5. In so determining, the lower court erred by misapprehending the legal doctrine on the disposal and disposal of fraud, thereby adversely affecting the conclusion of the judgment.

6. Therefore, without examining the Defendant’s grounds of appeal, the judgment of the court below is reversed, and the case is remanded to the court below for further proceedings consistent with this Opinion. Since there is an obvious error in the indication of the case name of the court below, it is decided to correct it in accordance with Article 25 of the Rules on Criminal Procedure. It is so

Justices Lee Ki-taik (Presiding Justice)