The case affirming the establishment of a crime of fraud in a case where the defendant, in collusion with the wife of the victim in order to recover the claim against the wife of the victim, entered into a sales contract on real estate owned by the victim and appropriated the purchase price for the above claim.

The case holding that the crime of fraud is established on the ground that the defendant, in collusion with the wife of the victim in order to recover the claim against the wife of the victim, entered into a sales contract on real estate owned by the victim on the ground that the third party is the buyer, and the act of appropriating the purchase price to the above claim exceeds the scope of legitimate exercise of rights under the social norms, and the transaction party's deception of the trust and good faith to be observed in the transaction of property is committed.

Articles 20 and 347 of the Criminal Act

Defendant 1 and one other

Defendants

Law Firm, Pacific Law Office, Attorneys Kim In-ap et al.

Seoul High Court Decision 90No2889 delivered on January 11, 1991

All appeals are dismissed.

The Defendants’ Counsel’ grounds of appeal are examined (the supplementary appellate brief is submitted after the lapse of the submission period, and it is judged only to the extent of supplement in case of supplemental appellate brief).

1. Ground of appeal No. 1

According to the reasoning of the judgment below, in the process of concluding a sales contract for the real estate of this case with the victim, the court below held that the defendants borrowed the above money from the non-indicted 1 to the non-indicted 1 in the sales contract as if they actually paid the money by dividing the money into two intermediate payments and the balance, and that the defendant 1 lent the above money 3.60 million won to the above victim from the non-indicted 1, who is the victim's wife. Accordingly, upon the request of the above victim, the court below did not know that the above money was sold to the above victim by the non-indicted 1 and the defendant 1 knew that the above money was sold to the non-indicted 1, who was issued with the above victim's right to real estate and the certificate of personal seal impression for provisional registration of the defendant 1, who was issued with the above payment date, was about to receive money from the non-indicted 1, and there was no illegality in the judgment of the court below that the above defendant 1 and the above defendant 1 knew that the above money was sold by the defendant 1's purchase and sale of the above real estate of this case.

As discussed in the arguments, although the above victim entrusted the management and disposal of his property to the non-indicted 1, it cannot be concluded that the non-indicted 1 could not belong to the use of the above purchase price merely because he directly participated in the conclusion of the contract with a separate interest in the sale and purchase of the real estate of this case and examined the contents of the contract in detail over a considerable period of time. Further, the statements made at the investigation agency of the non-indicted 1 and the court of first instance in accordance with the argument that the non-indicted 1 knew that the provisional registration was made under the name of the defendant 2 with respect to the real estate of this case as security that the non-indicted 1 bears to the defendant 1 before the conclusion of the sale and purchase contract of this case was made, there is no reason to believe that the court below did not respond to the above measures of the court below. Further, there is no evidence to acknowledge the acquisition of the real estate of this case by the defendant 1 and the non-indicted 1 and the non-indicted 1's social experience, and it is difficult to view that the above victim and the non-indicted 1's nature of life.

After all, there is no violation of the rules of evidence, incomplete deliberation, and mistake of facts in the judgment of the court below.

2. The second ground for appeal

The theory of fraud is merely a part of the liquidation process of a claim and obligation between Defendant 1 and the injured party, and it is merely a set-off of both claims. Defendant 1’s failure to notify the agreement between Nonindicted 1 to set-off and appropriation as above in entering into the instant sales contract does not constitute deception, which is a constituent element of fraud. However, even if examining the record, it is difficult to conclude that the above victim bears the responsibility for paying the borrowed loan obligation like the theory of lawsuit against Defendant 1, and it is difficult to conclude that the above victim bears the responsibility for paying the borrowed loan obligation. In addition, it is concluded with the above victim for the purpose of set-off for the settlement of a claim and obligation between Defendant 1 and Nonindicted 1 while entering into the sales contract with the victim, and the defendants meet the requirements

In fraud, deception is identical to the theory of lawsuit that it means that the above victim's belief and duty to observe each other in relation to property transaction are to be neglected. However, even though the above victim entrusted his husband's property management and disposition to non-indicted 1, the victim directly participating in the contract at the time of entering into the contract of this case and claimed that the purchase price of the real estate in this case should be KRW 2.5 million per deliberation. As seen above, in light of the fact that the defendant 1 and non-indicted 1 concealed the fact that the contract was agreed to cover the above loan, and the purchaser knew that the third party was the normal contract, and the method of paying the purchase price was the case as if the above victim was aware of the above agreement with the non-indicted 1 and the non-indicted 1, it is clear that the above victim did not comply with the contract of this case, and even if the above victim was legally responsible for paying the above loan to the defendant 1, the above victim may dispose of the above property through other methods, and thus, the defendant's act of exercising his property obligation and the right of the trust's right to the loan.

Ultimately, there is no argument that the lower court erred by misapprehending the legal doctrine of fraud.

3. Therefore, all appeals are dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Song Man-man (Presiding Justice)