(영문) 서울고등법원 2013.10.31 2013노1531 | 리걸엔진

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(영문) 서울고등법원 2013.10.31 2013노1531

특정경제범죄가중처벌등에관한법률위반(사기)등

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The part of the judgment of the first instance and the judgment of the second instance excluding the compensation order shall be reversed, respectively.

The defendant shall be punished by imprisonment for three years.

Reasons

1. Summary of grounds for appeal;

A. Regarding the judgment of the court below of first instance, the defendant (the first and second judgment of the court below) revealed that the property of the defendant was only 70% of the shares of H and all other creditors prior to the first borrowing of KRW 1 billion from the victim F. The loan business was not explained, and the loan was also used for the original purpose. When the business situation of the "E" restaurant is changed, the defendant was planned to dispose of the above shares and to repay the loan amount was notified to the above victim. Thus, the defendant did not deceiving the above victim, and the defendant did not have the intention to obtain the loan, and even though other creditors had the intent and ability to repay the loan amount, it was impossible for the defendant to attach the deposit account of the above restaurant, but the other creditor could not repay the loan amount after the seizure of the deposit account of the above restaurant. (2) The decision of the court below was not sufficient to inform the victim of the situation that the defendant had been in arrears at the time of S's request for construction work due to lack of financial resources and to request the Corporation to deposit the above funds in advance by paying KRW 30 million.

Nevertheless, the first and second court found all victims guilty on the grounds of their statements that are not reliable. Thus, the court below erred by misunderstanding the facts and affecting the conclusion of the judgment.

(2) The respective sentence of unfair sentencing (the first instance judgment: imprisonment with prison labor for three years and six months, and the second instance judgment: imprisonment with prison labor for six months) is too unreasonable.

B. The prosecutor (the first instance court’s judgment)’s sentence of the first instance court (the imprisonment of three years and six months) is deemed to be too unhued and unfair.

2. Determination:

A. Ex officio prior to the judgment on each of the grounds for appeal as above.

유사 판례

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