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The judgment of the court below is reversed.
Defendant
A Imprisonment for one year, and each of the defendants B shall be punished by imprisonment for ten months.
(b).
Reasons
1. Summary of grounds for appeal;
A. Defendant A: The intent and capacity to repay the borrowed money to the victim at the time of each of the instant borrowings is insufficient to recognize the intention to acquire money by deception.
2) Defendant B: The Defendant did not directly commit deception to the victim, but did not intend to obtain deception, and the Defendant did not do so in relation to the fraud with Defendant A.
(b) Sentencing (the sentence of the lower court: One year of imprisonment (Defendant A), one year of imprisonment, two years of suspended execution, and observation of protection (Defendant B)).
2. Determination
A. As to the assertion of mistake of facts, fraud is established by deceiving another person to make mistake, and inducing a dispositive act, thereby obtaining property or pecuniary benefits, and there is a relation between deception, mistake, and property disposal.
On the other hand, whether a certain act constitutes a deception that causes a mistake to another person, and whether such deception and the disposal of property are related to the person should be determined objectively in consideration of the transaction circumstances, the other party’s knowledge, character, experience, occupation, and other specific circumstances at the time of the act.
Inasmuch as deception as a requirement for fraud refers to all affirmative and passive acts that have to observe each other in the transactional relationship with property, it is sufficient to say that such deception does not necessarily mean a false representation as to the important part of a juristic act, and it is sufficient to establish the basis of judgment for an actor to make a disposition of property desired by an actor by omitting the other party in error. Therefore, in cases where it is recognized that the other party to the transaction would not have been engaged in the transaction if he/she was notified of a certain circumstance, a person who receives property or acquires pecuniary benefits from such transaction shall be given the other party in advance in accordance with the principle of good faith.