Whether the actual loss of the other party's property is a constituent element of fraud (negative)

A crime of fraud is established by deceiving another person and taking property or acquiring financial benefits based on the defective intent resulting from such deception. The essence of fraud is the acquisition of property or financial gains by deception, and it does not require that the other party actually suffers financial loss.

Article 347 of the Criminal Act

Supreme Court Decision 82Do3139 Decided February 22, 1983

Defendant

Defendant

Gwangju District Court Decision 84No796 delivered on February 8, 1985

The appeal is dismissed.

We examine the grounds of appeal.

1. We agree with the records of the records of the court of first instance, which adopted macroficial evidence and sold real estate (site and ground buildings) held by the defendant, which is located within a natural green area, and concluded a sales contract by deceiving the victim as a residential area, and received 7 million won as a down payment and an intermediate payment, and acquired it by deceit. It is reasonable to view the contents of the evidence preparation as a result of the fact-finding as violating the rules of evidence, such as the theory of litigation, and therefore, it is groundless to charge the fact-finding and the evidence preparation.

2. Fraud is an offense established by deceiving a third party and acquiring property or pecuniary benefits from the acquisition of property based on the defective intent. The essence of fraud is the acquisition of property or pecuniary benefits from deception, and does not require that the other party actually incurs property damage (see Supreme Court Decision 82Do3139, Feb. 22, 1983). Therefore, if the other party is mistaken in mistake by means of deception and obtains the delivery of property, it does not affect the establishment of fraud even if the other party did not incur property damage to the other party by providing reasonable consideration for the value of the property value. The sale price of real estate in the first trial case that the defendant intended to sell to the victim is a justifiable price in light of the transaction situation at the time of the transaction situation, and the defendant does not receive property, and thus, the so-called fraud of the defendant cannot constitute fraud. Thus, it is groundless because it is erroneous for the judgment of the court below and the judgment of the first instance on the contrary.

3. Therefore, the appeal is dismissed without merit. It is so decided as per Disposition by the assent of all participating judges.

Justices Yoon Il-young (Presiding Justice) Gangwon-young Kim Young-ju