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(영문) 대법원 2015.11.26 2015도13949
특정경제범죄가중처벌등에관한법률위반(사기)등
Text

The appeal is dismissed.

Reasons

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. As to the fraud, unless the criminal intent of defraudation, which is a subjective constituent element of the crime, is the case of fraud, unless the defendant makes a confession, it shall be determined by taking into account the objective circumstances such as the defendant's financial history, environment, contents of the crime, and the process of transaction before and after the crime. The crime of fraud is also established by willful negligence. The subjective element of the crime element refers to the case where the possibility of occurrence of the crime is expressed as uncertain and it is acceptable. The subjective element of the crime element is not only the case where the possibility of occurrence of the crime is expressed as uncertain, but also there is an awareness of the possibility of occurrence of the crime, but also the internal intent to allow the risk of occurrence of the crime. Whether the actor has permitted the possibility of occurrence of the crime should not depend on the statement of the offender, but also on how the general public can evaluate the possibility of occurrence of the crime from the standpoint of the offender.

(2) In light of the evidence duly admitted by the court of first instance, which maintained the reasoning of the judgment below, the court below is just in holding that the fraud of the facts charged in the instant case (excluding the part of acquittal on the ground of the first instance judgment) is guilty on the grounds stated in its reasoning. In so doing, contrary to what is alleged in the grounds of appeal, the court below erred by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules, or exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules, or by misapprehending the legal principles as to the criminal intent, deception and causal relationship, ability to repay, impossible attempted crimes, or impossible crimes.

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