In a case where: (a) the Defendant was indicted on charges of acquiring money through several occasions on the ground that he/she did not have any intent or ability to perform the contract for the performance of the contract for the performance of the contract for the performance of the contract for the performance of the contract for the performance of the contract for the performance of the contract for the performance of the contract for the performance of the contract for the performance of the contract for the performance of the contract for the performance of the contract for the performance of the contract; and (b)

무속인인 피고인이 갑을 위하여 굿을 하여 줄 의사나 능력이 없고, 굿을 하더라도 3개월 내에 아이가 생기게 하거나 공황장애 증상을 낫게 해 주는 등의 의사나 능력이 없음에도, 갑에게 굿이 위와 같은 효험이 있는 것처럼 거짓말을 하여 갑에게서 약 1년 6개월 동안 총 9회에 걸쳐 약 2억 6천만 원을 편취하였다는 내용으로 기소된 사안에서, 갑은 임신, 남편·시댁과의 관계, 직장 문제 등으로 힘든 상황에서 마음의 안정을 얻고자 무속의 힘에 의지해 보려는 생각에서 피고인의 별다른 기망행위가 없었음에도 피고인에게 지속적으로 무속 행위를 부탁하거나 피고인의 무속 행위 제안에 응하였을 가능성이 있는 점, 피고인이 갑에게서 받은 굿값 명목의 돈이 다른 고객들한테 받은 굿값 등과 비교할 때 고액이라거나, 피고인이 돈을 편취할 의도로 굿을 너무 자주 시행한 것이라고 단정하기 어려운 점 등을 종합하면, 피고인이 진실로 무속 행위를 할 의사가 없거나 자신도 효과를 믿지 아니하면서 효과가 있는 것처럼 가장하고 갑을 기망하여 부정한 이익을 취하거나, 통상의 범주를 벗어나 재산상 이익을 취할 목적으로 무속 행위를 가장하여 갑을 적극적으로 기망함으로써 돈을 편취하였다고 보기 어렵다는 이유로 무죄를 선고한 사례.

Article 347(1) of the Criminal Act; Article 325 of the Criminal Procedure Act

Defendant

Prosecutor

Water change et al.

Law Firm Barun Law LLC, Attorneys Kim Jae-hwan et al.

Seoul Central District Court Decision 2015Ra1412 Decided January 22, 2016

The judgment of the first instance is reversed.

The defendant shall be innocent.

1. Summary of the grounds for appeal;

① Examining the Defendant’s credit card settlement details, in light of the fact that: (a) the payment details is confirmed at another place on the date on which the Defendant asserts that he had the right to demand payment; (b) the Defendant’s receipt date and time of receiving the cash payment does not coincide with the content of the confirmation document prepared by a person who is bound to pay the same fees; (c) the acquisition process and amount of cash payment was not verified; and (iv) the details of cash transfer received from another client to the account are not discovered; and (v) the details of transfer from another client to the account are not discovered, the Defendant did not actually have issued the right to demand payment for the victim.

2. Ex officio determination

Before the judgment on the grounds for appeal, the prosecutor examined ex officio before the judgment on the grounds for appeal, and the prosecutor applied for the amendment of the indictment with the contents of the facts charged as follows, and this court permitted it and changed the subject of the judgment, so the judgment of the court of first instance cannot be exempted from being reversed (the attorney's amendment of the facts charged in the appellate court as follows is just the defendant's right of defense and the interests of the court, and the identity of the basic facts of the facts charged is not recognized, and thus, it should not be permitted. The revised facts charged are added partly by specifying the contents of the intention and deception of deception, and even according to the contents of both the facts charged, it is reasonable to view that it is identical to the original facts charged and the basic facts of the defendant's right of defense and the defense counsel's right of defense and defense is not infringed, since the amendment of the indictment within the scope of identity does not infringe the defendant's interest or defense.

Indictment

The Defendant is an infinite person who operates an infinite house called “○○ Party” at the Defendant’s residence in Gangnam-gu Seoul ( Address omitted) and 2201 ( Address omitted).

1) 피고인은 2009. 10. 27.경 위 ‘○○당’ 무속집에서, 피해자 공소외 1(여, 35세)에게 “삼신할머니한테 빌어서 아이를 점지받는 굿을 한번 해 봐라. 내 고객 중에 고환이 하나밖에 없는 사람이 있는데, 이 굿을 하고는 아이가 생겼다. 아들이 생길 것이고, 아들을 낳으면 시댁에서도 인정받지 않겠느냐. 3개월 내에 자연적으로 아이가 생긴다. 굿을 해야 하니 굿 비용으로 20,000,000원을 달라.”라는 취지로 거짓말하였다.

However, even if the Defendant received money from the victim as the expenses for the performance of the contract, the Defendant planned to use the money for other purposes, such as credit card payment, etc. Even if he/she received the payment of the contract, the Defendant did not have any intent or ability to cause natural birth within three months. Nevertheless, as seen above, the Defendant, as if he/she had no objective and substantial effect on the part of the victim, was unaware of the victim as if he/she had an effect on the part of the victim, and thus, was remitted KRW 20,00,000 from the

2) Around November 9, 2009, the Defendant heard the victim’s awareness that there is a yellow disorder symptoms, and made it false for the victim to the effect that “the Defendant is aware of the symptoms of a rash disorder. This is because the business is well known. It is true that the business is well known. The New Favour hhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhh

However, the Defendant did not have any intent or ability to perform the exercise of the right on behalf of the victim as described in the foregoing Paragraph (1). Even if the right to receive the contract has been transferred, the Defendant did not have any intent or ability to make the victim improve the symptoms of sule disorder, or make the victim’s business, etc. be conducted well. Nevertheless, the Defendant, as seen above, by deceiving the victim as if he had no objective and substantial effect on the part of the victim, and was remitted KRW 30,00,000 to the account in the name of the Defendant.

3) On February 5, 2010, the Defendant made a false statement to the effect that, “The Defendant, at the ○○○○ Party’s House,” “The Defendant was able to keep the Defendant from spreading all the horses by putting the string of the arm’s length by leaving the string of the arm’s length. There is a string of the arm’s length in front of the arm’s length. There is a string of the arm’s length. At the time of delivery, the Defendant’s length was defective, i.e., clothes with a thickness of the arm’s length and food to be able to enter all the arm’s lengths. 35,00,00 won is changed at the cost of the right to receive the trust.”

However, the Defendant did not have any intent or ability to perform the exercise of the right on behalf of the victim as described in the foregoing Paragraph (1). Even if the right to the performance of the right to the performance of the right to the performance of the right to the performance of the right to the performance of the right to the performance of the right to the performance of the right to the performance of the right to the performance of the right to the performance of the right to the performance of the right to the performance of the right to the performance of the right to the performance of the right to the performance of the right to the performance

4) Around March 2, 2010, the Defendant made a false statement to the effect that “Is the parents of the Party may die if Is the Party did not have the right to receive the payment.” At the expense of the exercise of the right to receive the payment, Is the Defendant would have changed to KRW 40,000,000 at the expense of the exercise of the right to receive the payment.”

However, the Defendant did not have any intent or ability to perform the exercise of the rights on behalf of the victim as described in the foregoing Paragraph (1). Even if the Defendant was in the exercise of the rights, the Defendant did not have any intent or ability to prevent or control the victim’s death, etc., such as the victim’s parents’ death. Nevertheless, the Defendant was provided KRW 40,000,000 with a total of KRW 20,000,000 with the account in the name of the Defendant on March 4, 2010, by deceiving the victim as if the exercise of the rights without objective and actual efficacy had been completed.

5) On March 12, 2010, the Defendant made a false statement to the effect that “The Defendant, at the “○○○ Party” House, “The Defendant returned to the Plaintiff’s wife’s family member, who was a member of the Party’s family member, and gave to the Defendant a member of the Party who was a member of the Party, who was a member of the Party’s family.” The Defendant’s false statement to the effect that “A member of the Party’s family member ought to be a member of the Party’s family

However, as stated in the above Paragraph (1), the Defendant did not have any intent or ability to exercise the right to demand the transfer of rights on behalf of the victim, and did not have any intent or ability to affect the lifespan, such as extending the life order of the victim’s father. Nevertheless, the Defendant, as if the right to demand the transfer of rights without objective and substantial filial effect had been completed, deceiving the victim as if he had the right to demand the transfer of KRW 10,00,000,000, to the account in the name of the Defendant.

6) Around March 18, 2010, the Defendant made a false statement to the effect that “The Defendant shall exercise the right to receive the deposit and the right to receive the deposit for his/her parents,” which reads to the effect that “The Defendant shall exercise the right to receive the deposit for his/her parents,” and that “The amount of KRW 34,400,000 shall be changed at the expense of the right to receive the deposit.”

However, the Defendant did not have any intent or ability to perform the obligation to perform the obligation on behalf of the victim as described in the foregoing Paragraph (1). Even if the right to perform the obligation to perform the obligation to perform the obligation to perform the obligation to perform the obligation to perform the obligation, the Defendant did not have any intent or ability to exert a good influence on the victim’s emotional or biological parents or the victim. Nevertheless, the Defendant was issued KRW 17,200,000 by deceiving the victim as if he had been aware of the effect of the exercise of the obligation to perform the obligation to perform the obligation to perform the obligation to perform the obligation to perform the obligation to perform the obligation to perform the obligation to perform the obligation to perform the obligation to perform the obligation to perform the obligation to perform the obligation to perform the obligation to perform the obligation to perform the obligation to perform the obligation to perform the obligation to perform the

7) On April 20, 2010, the Defendant stated to the effect that “The Defendant, at the ○○○ Party’s House,” “The Defendant,” “The Defendant, at the end of April 20, 2010, sent back to the victim one time with the natural parents of the Party whose sea was changed, and with the personal uniforms.” The Defendant changed KRW 30,00,000 at the expense of the exercise of the right to demand the payment of the deposit.”

However, the Defendant did not have any intent or ability to exercise the right to rescission on behalf of the victim as stated in the foregoing Paragraph (1). However, even if the Defendant had the right to rescission of the contract, the Defendant did not have any intent or ability to exercise the right to rescission of the contract on behalf of the victim. Nevertheless, as such, the Defendant, who had no objective and substantial effect on the part of the victim, had the right to rescission of the contract, by deceiving the victim as if he had the right to rescission of the contract having no effect on the part of the victim, and was remitted KRW 30,00,0

8) On May 14, 2010, the Defendant made a false statement to the effect that “The date on which personnel management can be issued to the Party at this year. As the previous theory may be serious, it is deemed that the new money will particularly be regarded as having been received as a result of the completion of the performance of the contract.” The Defendant’s false statement to the effect that “The amount of KRW 50,000,000 shall be changed at the cost of the performance of the contract.”

However, the Defendant did not have any intent or ability to perform the obligation to perform the obligation on behalf of the victim as stated in the foregoing Paragraph (1). Even if the right to perform the obligation to perform the obligation to perform the obligation to perform the obligation to perform the obligation to perform the obligation to perform the obligation to perform the obligation to perform the obligation to perform the obligation to perform the obligation to perform the obligation to perform the obligation to perform the obligation to perform the obligation to perform the obligation to perform the obligation to perform the obligation to perform the obligation to perform the obligation to perform the obligation to perform the obligation to perform the obligation to perform the obligation to perform the obligation

9) Around May 6, 2011, the Defendant made a false statement to the effect that the Defendant “○○○ Party” should have the victim exercise the right of payment once more than once in every day, in order to fully extract the roots. The Defendant shall have to exercise the right of payment at the cost of the exercise of the right of payment, which shall vary to KRW 15,00,000.”

However, the Defendant did not have any intent or ability to perform the obligation to perform the obligation on behalf of the victim as described in the foregoing Paragraph (1). Even if the right to perform the obligation to perform the obligation to perform the obligation to perform the obligation to perform the obligation to perform the obligation to perform the obligation to perform the obligation to perform the obligation to perform the obligation to perform the obligation to perform the obligation to perform the obligation to perform the obligation to perform the obligation to perform the obligation to perform the obligation to perform the obligation to perform the obligation to perform the obligation to perform the obligation to perform the obligation to perform the obligation to perform the obligation to perform the obligation to perform the obligation,

However, since the changed facts in the indictment include whether the defendant actually performed the contract, the prosecutor's assertion of mistake of facts is still meaningful, and it is also determined including this.

3. Determination of the changed facts charged (including the prosecutor's assertion of mistake of facts)

A. Relevant legal principles

Although the fundamental principles, character, etc. of the exercise of the right of redemption are not sufficiently explained scientificly, it is a kind of public earth and fisheries that has been considerably widened among the general public in Korea, and its meaning or subject is established on the premise of mental and non-receptic world, such as so forth, rather than within the scope of objectively recognizable logic. As such, the purpose is to directly and indirectly participate in the process rather than demanding the achievement of any objective result. In exceptional cases where it is conditioned on the achievement of an objective result, the implementer acts without the intention to achieve such objective, and even if the intended purpose was not achieved, it is difficult to view that the implementer, etc. deceiving the requester of the right of redemption, etc., even if the intended purpose was not achieved. However, if the implementer did not intend to engage in any act without the intention to be true, and the implementer did not induce the requester of the right of redemption, etc. with the intent of inducing the other party to engage in the act without the intention to engage in the act without the intention to engage in the act without the intention to engage in the act without the trust.

B. Determination on the instant case

Based on the above legal principle, comprehensively taking into account the following circumstances acknowledged by the evidence duly adopted and investigated by the first instance court and the trial court, it is difficult to view that the Defendant acquired money by deceiving the victim as if the Defendant did not intend to engage in a indecent act in the truth or did not believe its effect, and by deceiving the victim, or by actively deceiving the victim for the purpose of taking property benefits beyond the ordinary category. Accordingly, the prosecutor’s allegation of mistake is not acceptable.

1) The Defendant continued to engage in intangible conduct, such as the trust and surrender, after receiving a new forest in around 2002.

2) Nonindicted 2, 3, and 4, etc., who participated in the performance of the right to demand the performance of a contract with the Defendant and received daily allowances from the Defendant (the Defendant specified the date on which the performance of the right to demand the performance of the contract was made in cash after a considerable period of time, and the preparation of the written confirmation of the fact by those who participated in the performance of the right to demand the performance of the contract was deemed to have been completed after a considerable period of time. As such, there is a possibility of somewhat different differences between the date of the performance of the right to demand the performance of the contract and the date indicated in the facts charged, and the victim also appears to have been aware of the fact that the Defendant had made the performance of the right to demand

3) Although it is recognized that the credit card in the name of the Defendant was used at a different place on the date on which the Defendant asserts that he had the right to receive the payment on behalf of the victim, the credit card in the name of the Defendant appears to have been used together with Nonindicted 5 or 6, etc. In addition, it cannot be ruled out that the Defendant did not have the right to receive the payment on a day before and after the enforcement of the right to receive the payment on a day. Therefore, it cannot be readily concluded that the Defendant did not have the right to receive the payment on the sole basis of

4) In light of the fact that it is reasonable for the Defendant to receive case fees from customers in cash and to pay in cash to the persons participating in the exercise of the right to demand the payment of the contract, it cannot be ruled out that the Defendant used cash received from other customers or cash in his/her possession in order to proceed with the exercise of the right to demand the payment as requested by the victim. Therefore, it cannot be readily concluded that the Defendant did not perform the right to demand the payment for the victim solely on the ground that the cash deposited from the Defendant’s account details was either withdrawn or used at the time of claiming that the payment was made in cash.

5) 피해자 공소외 1이 피고인을 찾아가게 된 경위, 피고인과 피해자 사이에 주고받은 문자메시지의 내용과 이에 대한 피고인의 답변 및 반응(피고인은 피해자에게 상담하는 내용마다 굿을 하라고 권유하거나 무속 행위를 강요하지는 않았던 것으로 보인다), 피고인에게 굿을 의뢰하고 돈을 교부한 명목이나 시기 및 횟수, 피해자의 나이, 경력, 직업, 학력 등을 고려하고, 이에 더하여 피해자는 피고인을 찾기 이전에 이미 다른 무속인들을 접해 본 경험이 있었던 점 등에 비추어 보면, 피해자는 임신, 남편·시댁과의 관계, 직장 문제 등으로 힘든 상황에서 마음의 안정을 얻고자 무속의 힘에 의지해 보려는 생각에서, 피고인의 별다른 기망행위가 없었음에도 피고인에게 지속적으로 무속 행위를 부탁하거나 피고인의 무속 행위 제안에 응하였을 가능성을 배제할 수 없다.

6) The Defendant received KRW 50 million which is less than 10 million from the victim as the value of the exercise of the rights. Such amount is difficult to readily conclude that it is a higher amount even in comparison with the value of the exercise of the rights, etc. that the Defendant received from other customers. Due to the nature of the exercise of the rights, the price may vary depending on the reputation, capacity, or the nature, size, etc. of the relevant exercise of the rights. Therefore, it is difficult to uniformly determine whether it is a high amount of money. In addition, in light of the relationship between the Defendant and the victim as seen earlier, the relationship between the victim and the victim at the time, the details of the victim’s depth and concern, trust and dependence on the personal ability of the Defendant, etc., it is difficult to readily conclude that the Defendant has implemented the right to receive the rights too frequently with the intent

4. Conclusion

Thus, the judgment of the court of first instance is reversed pursuant to Article 364(2) of the Criminal Procedure Act, and it is again decided as follows after pleading.

1. Summary of the facts charged

As seen earlier, the facts charged are indicated in the above 2.

2. Determination

3. As seen earlier, the above facts charged constitute a case where there is no proof of crime, and thus, the judgment of innocence is rendered under the latter part of Article 325 of the Criminal Procedure Act, and the defendant does not consent to the pronouncement of the judgment of innocence, and thus, the purport of the public announcement of the judgment of innocence is not ordered under

Judges Kim Sung (Presiding Judge)