[1] The meaning of an act of disposal, which is a requirement for crime of fraud

[2] The case denying the establishment of fraud on the ground that there was no property dispositive act by the defrauded on the facts charged that he/she acquired property gains on the unpaid portion of the interest during the extension period, not property gains on the extension of the maturity period due to the extension

[1] Fraud is established by deceiving another person to omit it in mistake, causing such dispositive act to gain property and property gains by inducing such dispositive act. Here, the act of dispositive act means property dispositive act, which requires subjectively the defrauded to recognize the dispositive intent, namely, the consequences of the dispositive act, and there is an act that is objectively controlled by such intent.

[2] The case denying the establishment of fraud on the ground that there was no property dispositive act by the defrauded on the facts charged that the defrauded acquired property gains on the unpaid portions of the interest during the extended period due to the extension of the maturity of the existing obligation, not the property gains of deferment due to the extension

[1] Article 347 of the Criminal Code / [2] Article 347 of the Criminal Code

[1] Supreme Court Decision 87Do1042 delivered on October 26, 1987 (Gong1987, 1829) / [2] Supreme Court Decision 83Do1723 delivered on November 8, 1983 (Gong1984, 54) 86Do1501 delivered on October 14, 1986 (Gong1986, 3070), Supreme Court Decision 96Do2904 delivered on February 14, 1997 (Gong197, 850) 98Do3282 delivered on December 29, 198 (Gong198, 278)

Defendant

Prosecutor

Attorney Han Ho-hoon

Suwon District Court Decision 98No3881 delivered on March 18, 1999

The appeal is dismissed.

We examine the grounds of appeal.

1. According to the reasoning of the judgment below, the court below found the defendant not guilty of the above facts charged on the ground that "a bank forged by the defendant on January 1, 1996 as a bond company Nalese 4 of the Promissory Notes, which was also forged by the defendant on January 1, 1996, presented four promissory notes to Nalese Hong, and the defendant's existing debt amount of 80 million won against the victim Choi Byung-gu, was not able to repay it with the due date stated in the above Promissory Notes, and the extension of the due date for payment was made without any falsity, so it was so long as the payment due date was extended from Nalese, the court below did not pay only 2.4 million won of interest on the above debt until the due date stated in the above Promissory Notes, and acquired financial profits equivalent to 8.4 million won because the defendant did not pay it with interest on the above debt amount of 8.4 million won as stated in the above facts charged."

2. Fraud is established by deceiving another person to omit it in mistake, causing such dispositive act to gain property and financial gains. Here, the act of dispositive act means property dispositive act, and it requires subjectively that the defrauded recognizes the dispositive intent, namely, the consequences of the dispositive act, and there is an act that is subject to such intention objectively (see Supreme Court Decision 87Do1042, Oct. 26, 1987).

However, the facts charged do not mean that the defendant acquired the pecuniary gains of deferment due to the extension of the deadline for repayment of the existing obligation, but acquired the pecuniary gains of the victim about the amount of KRW 8.4 million which was not paid, among the interests during the extended period due to the extension of the deadline for repayment. As long as the interest on the extension of the deadline for repayment is not naturally exempted from the interest on the extension of the deadline for repayment, in order to establish fraud for the portion of which the interest has not been paid during the extended period

The court below's finding the defendant not guilty of this part of the facts charged on the ground that there is no evidence to acknowledge that the defendant, who is the defrauded, has performed any act of disposal, such as exemption from liability against the defendant, out of the interest on extension of the period of 8.4 million won. There is no error of law such as misunderstanding of legal principles as to dispositive act in fraud or misunderstanding of facts due to violation of the rules of evidence, as

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

Justices Cho Chang-hoon (Presiding Justice)