(영문) 대구고등법원 2020.01.22 2019노343 | 리걸엔진

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(영문) 대구고등법원 2020.01.22 2019노343

특정경제범죄가중처벌등에관한법률위반(사기)등

Text

1. All appeals filed by the defendant and prosecutor are dismissed;

2. An application for remedy by an applicant for compensation shall be dismissed;

Reasons

1. Summary of grounds for appeal;

A. Defendant 1) Violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Fraud) (1) is merely a failure to pay the proceeds due to the increase of the construction price following the design change, the unexpected amount of loan execution, the low sales performance, etc., and it does not have any intention or ability to pay the proceeds from the beginning.

In light of the fact that the defendant started the business upon the request of G, that the amount equivalent to the funds of the defendant and his family has been invested in the business, and that the defendant directly performed the construction work to reduce the construction cost, it cannot be said that the defendant has the criminal intent to acquire it.

(2) The amount of fraud of the instant case shall be limited to the value of the land before development, and shall exclude the Defendant’s development and increase in the value of the land due to the execution of the construction work.

B) The Defendant was actually planning the construction of a commercial building at the time of borrowing KRW 50 million from the victim G, and the Defendant continued to implement the business by continuously changing the new construction of a commercial building after the loan. As such, the Defendant cannot be deemed to have a criminal intent to obtain fraud by the Defendant. 2) The lower court’s punishment of an unreasonable sentencing (three years of imprisonment) is too unreasonable.

B. The Prosecutor’s sentence of the lower court is too unhued and unreasonable.

2. Determination

A. As to the Defendant’s assertion of misunderstanding of facts or misapprehension of the legal principles, the crime of defraudation, which is a subjective constituent element of the crime, should be determined by considering the objective circumstances such as the Defendant’s financial history, environment, contents of the crime, and the process of performing transaction before and after the crime, unless the Defendant makes a confession, and the criminal intent is not a conclusive intention but a conclusive intention.

(B) dolusent intent as a subjective element of the constituent element of a crime occurs.

참조조문

-특정경제범죄 가중처벌 등에 관한 법률

유사 판례

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